Filed 3/10/16 P. v. Salinas CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                     DIVISION 2


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144491
v.
ARTHUR R. SALINAS,                                                   (San Francisco County
                                                                     Super. Ct. No. SCN 222179)
         Defendants and Appellant.


                                                INTRODUCTION
         The sole issue raised by defendant Arthur R. Salinas in this appeal is that the trial
court erred in finding his prior Texas robbery conviction qualified as a serious or violent
felony under the Three Strikes law. The Attorney General agrees that the evidence was
insufficient to make that finding. We agree, and will remand the case to the trial court for
further proceedings.
                        FACTUAL AND PROCEDURAL BACKGROUND
         Because this case concerns only one aspect of the court trial on prior convictions,
we describe the rest of the facts only briefly.
         By information filed May 14, 2014, defendant was charged with forcible rape,
forcible oral copulation, and failure to register as a sex offender, along with special
allegations and many prior strike convictions, serious felony convictions, and prison
priors. A jury found him guilty of failing to register as a sex offender (Pen. Code, § 290,




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subd. (b))1 (count 3), and not guilty of forcible oral copulation and its lesser included
offense. The jury was unable to reach a verdict on the forcible rape charge, and a mistrial
was declared on that count, which was later dismissed at the request of the prosecution.
        On October 21, 2014, the prosecution filed a first amended information alleging
the same offenses charged in the May 14, 2014, information, but altering the prior
conviction allegations. A court trial on the prior convictions was held on October 21,
2014.
        At the court trial on the defendant’s prior convictions, the prosecution moved into
evidence as People’s Exhibit 28 the grand jury indictment, judgment, and waiver of rights
form from defendant’s Texas conviction for robbery in 1975.2 This was the extent of the
evidence on the 1975 Texas robbery conviction. Defendant argued that the Texas
robbery conviction did not qualify as a robbery in California because Texas robbery law
did not require that property be taken from the victim’s person or immediate presence or
that the property be carried away.
        The trial court found that the prior strike allegation based on defendant’s Texas
robbery conviction was true, and that this conviction constituted a strike under California
law.
        The trial court also found true prior strike and prior prison allegations based on
defendant’s convictions for rape and for unauthorized use of a motor vehicle, both in
Texas. The findings as to these convictions are not at issue in this appeal, and we do not
address them further.
        On March 2, 2015, defendant was sentenced to serve 27 years to life in prison.


        1
            All further undesignated statutory references are to the Penal Code.
        2
         The prosecution and the trial court in the matter before us also referred to
People’s Exhibit 26, which consists of the trial, punishment and sentencing transcript for
defendant’s Texas rape conviction in 1982. At the “punishment phase” of defendant’s
rape trial in Texas, the prosecutor referred to defendant’s prior 1975 Texas robbery
conviction, and stated “that robbery, physically taking someone’s money by use of force,
is a violent crime.” But as the Attorney General concedes, this statement cannot be
considered part of the record of conviction for the Texas robbery.


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       Defendant timely appealed.
                                          DISCUSSION
       Both defendant and the Attorney General are in agreement that there was
insufficient evidence to support the trial court’s finding that the Texas robbery conviction
qualifies as a California strike prior.
       A prior conviction in another jurisdiction qualifies as a strike for purposes of
California’s Three Strikes sentencing law if it includes all the elements of a crime that is
a serious or violent felony in California. (§ 667, subd. (d)(2); People v. Woodell (1998)
17 Cal.4th 448, 453.) It is undisputed that robbery is a “ ‘serious felony’ ” under section
1192.7, subdivision (c)(19) as well as a “ ‘violent felony’ ” as described in section 667.5,
subdivision (c)(9).
       “The prosecution has the burden of proving beyond a reasonable doubt each
element of a prior conviction used to enhance a defendant’s sentence.” (People v.
Rodriguez (2004) 122 Cal.App.4th 121, 128) (Rodriguez).) As our Supreme Court
explained in People v. Guerrero (1988) 44 Cal.3d 343, 354-355, in considering section
667 enhancements involving out-of-state convictions, “the court may look to the entire
record of the conviction to determine the substance of the prior foreign conviction; but
when the record does not disclose any of the facts of the offense actually committed, the
court will presume that the prior conviction was for the least offense punishable under the
foreign law.”
       The indictment and judgment are part of the record of conviction. (See People v.
McMahan (1992) 3 Cal.App.4th 740, 745-746 [indictment]; People v. Miles (2008) 43
Cal.4th 1074, 1082.) We review the evidence to determine whether substantial evidence
supports the trial court’s finding. (Rodriguez, supra, 122 Cal.App.4th at p. 128.)
       The crime of robbery in California is defined as “the felonious taking of personal
property in the possession of another, from his person or immediate presence, and against
his will, accomplished by means of force or fear.” (§ 211.) “California courts have
construed the taking element of robbery to include two necessary elements: caption or



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gaining possession of the victim’s property, and asportation or carrying away the loot.”
(People v. Lopez (2003) 31 Cal.4th 1051, 1056.)
       The parties are in agreement that asportation is not a required element of robbery
under Texas law,3 and another court in this state has so held. (Rodriguez, supra, 122
Cal.App.4th at p. 130.4) “In Texas, ‘actual commission of the offense of theft is not
prerequisite to the commission of a robbery[.]’ ” (Ibid.) Further, Texas robbery law,
unlike California, does not require the property to be taken from a victim’s possession.
(Ibid.; cf. People v. Nguyen (2000) 24 Cal.4th 756, 764 [robbery victim must be in actual
or constructive possession of property taken].)
       The trial court in the matter before us considered the indictment, the judgment and
waiver of trial rights from defendant’s 1975 Texas robbery conviction. The only
evidence of the circumstances of the 1975 robbery was the following statement in the
indictment: that defendant “did then and there unlawfully while in the course of

       3
        We granted the Attorney General’s unopposed Request for Judicial Notice of
Texas Penal Code sections 29.01, 29.02, 31.01 and 31.03 as effective in 1974 when
defendant was charged with robbery in Texas. These statutes are relevant to defendant’s
claim that his Texas robbery conviction was not a serious or violent felony under
California law.
       Texas Penal Code section 29.02, subdivision (a) provided that a person perpetrates
robbery “if, in the course of committing theft as defined in Chapter 31 of this code and
with intent to obtain or maintain control of the property, he [¶] (1) intentionally,
knowingly, or recklessly causes bodily injury to another; or (2) intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death.”
     “ ‘In the course of committing theft’ means conduct that occurs in an attempt to
commit, during the commission, or in the immediate flight after the attempt or
commission of theft.” (Texas Pen. Code, § 29.01, subd. (1).)
        “Theft” was defined as “an offense if, with intent to deprive the owner of property:
[¶] (1) [the defendant] obtains the property unlawfully; or [¶] (2) [the defendant]
exercises control over the property, other than real property, unlawfully.” (Texas Pen.
Code, § 31.03, subd. (a).)
       4
          Rodriguez considered Texas robbery law as it existed in 1975. The Attorney
General states (and defendant does not dispute) that Texas robbery law did not change
between 1974 and 1975. In fact, both parties rely on Rodriguez in urging that the trial
court in this case erred.


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committing theft of money owned by . . . Complainant, and with intent to obtain and
maintain control of the property, intentionally and knowingly threaten and place
Complainant in fear of imminent bodily injury and death.” As the Attorney General
concedes, “There was no evidence that [defendant] took property from the victim’s actual
or constructive possession and carried it away, and because 1974 Texas robbery law did
not require those elements, the trial court erred when it determined [defendant’s] Texas
robbery conviction qualified as a strike under California law. (See [Rodriguez], supra,
122 Cal.App.4th at p. 131.)” We agree, and on that basis conclude there was insufficient
evidence to support this finding by the trial court.
                                       DISPOSITION
       The trial court’s determination that defendant’s prior Texas robbery conviction
qualified as a strike prior under California law is reversed. The case is remanded for
retrial of the strike prior, and if necessary for resentencing. The judgment is otherwise
affirmed.




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                                 _________________________
                                 Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.




A144491, People v. Salinas




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