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The People v. Michael Dean Green

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO


December 16, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL DEAN GREEN, DEFENDANT AND APPELLANT.

Napa County Super. Ct. No. CR144176

The opinion of the court was delivered by: Haerle, Acting P.J.

P. v. Green 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I. INTRODUCTION

Appellant Michael Dean Green appeals from the judgment following a jury trial in which he was found guilty of several offenses stemming from an incident in which appellant, with police officers in pursuit, crashed his truck while driving under the influence of alcohol. The jury also found true the allegations of a prior driving under the influence conviction, two prior convictions, and two prior prison terms. The court determined that both prior convictions were strikes. On appeal, he argues instructional error, ineffective assistance of counsel, insufficient evidence to support the prior strike findings, and violation of his Sixth and Fourteenth Amendment rights as a result of the denial of his request for a jury trial on the issue of whether his prior convictions were strikes. Finding no error, we will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On January 27, 2009, the Napa County District Attorney filed an information charging appellant with felony evading an officer with willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a); count 1), misdemeanor driving under the influence (DUI) with a prior DUI (Veh. Code, § 23152, subd. (a); count 2), and driving with a blood alcohol level above 0.08 percent with a prior DUI and with a blood alcohol level of 0.15 percent or higher (Veh. Code, §§ 23152, subd. (b), 23578; count 3). The information alleged that appellant had two prior convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)).*fn1 The information also alleged that appellant had two prior strike convictions under the Three Strikes law (§ 1170.12, subds. (a)-(d)).

Prosecution Case

On the evening of September 5, 2008, Officers Garth Bender and Aaron Medina responded in two patrol cars to a reported disturbance at 3115 Encanto Drive in Napa. The officers spoke briefly with the neighbors across the street but then went to speak with Anne Green who resided at 3115 Encanto. After that conversation, the officers returned to speak with the neighbors.

Wayne Law and his wife, Jolin Halstead, lived across the street from 3115 Encanto. At around 6:45 p.m., Law and Halstead heard car tires screeching and what sounded like a car speeding rapidly. The couple went outside onto their driveway and saw a green pickup truck "burn rubber out of the street . . . going right on Salvador."

While the police were talking to them, the green truck returned and slowed down in front of the house across the street where the Green family lived, and then drove away rapidly. Law and Halstead saw that appellant was driving the truck.

The officers heard tires screeching and then saw a green pickup truck turning from Salvador onto Encanto. The truck was driving southbound, toward them, and going very fast. Law and Halstead told Medina, "that's him." Officer Bender held up his hand and yelled for the truck to stop.

The driver's window was open and the driver looked in the officers' direction. The truck was travelling fast, then slowed down to about 20 to 30 miles per hour and steered to the right. The truck then accelerated and continued southbound on Encanto. Medina realized that the driver had swerved to avoid a cat in the road. The officers identified appellant as the driver; they also saw a passenger in the truck.

Appellant drove away fast, at roughly 45 to 50 miles per hour. The officers ran for their patrol cars and pursued appellant with their lights and sirens on. Medina was behind appellant; Bender trailed Medina.

Appellant turned left on Paulson then made two more turns before fishtailing, going off the road, hitting a tree, and then finally stopping after hitting a parked truck and another tree.

The speed limit on Encanto was 25 miles per hour. Medina indicated that appellant committed several violations of the Vehicle Code, including speeding, making an unsafe turn, and running a stop sign.

At the crash scene, Bender covered the driver's side of the truck and Medina covered the passenger's side. Medina saw appellant in the middle of the front bench seat, scooting over to the passenger seat. The other occupant of the vehicle, Dannetta Brown, was lying across appellant with her head toward the driver's side.

Brown climbed out the driver's window and fell into the bed of the parked truck that had been hit. She was incoherent and rolling around. Bender believed that she was under the influence of alcohol and methamphetamines. Her eyes were red, watery, and glazed-over, and she smelled of alcohol. She urinated on herself.

Medina took appellant out of the passenger's door of the truck, checked for injuries, then handcuffed him and put him in his patrol car. Appellant smelled of alcohol, had bloodshot eyes and slurred speech.

Bender escorted Brown to the hospital. She was uncooperative and belligerent in the ambulance, and eventually had to be sedated. She was ultimately arrested for public intoxication and possession of ammunition.

Medina took appellant to the hospital about 15 minutes after the crash, and took a tape-recorded statement from him. During the interview, appellant stated that he had consumed four beers and some whiskey. At first, appellant admitted driving away from the officers on Encanto and being the driver when the truck crashed; he said Brown tried to switch seats with him after the accident. Appellant said he lost control of the truck because he was driving too fast. Later in the interview, he made inconsistent statements about who was driving.

An analysis of appellant's blood drawn at the hospital indicated a blood-alcohol level of 0.19 percent. According to the toxicologist, a person with that level would be too impaired to drive safely and could have mental impairment such as confusion, lack of judgment, and lack of inhibition.

Defense Case

The accident occurred in front of Michael and Myrna Lunceford's house on Gordon Drive. Ms. Lunceford testified that their truck, boat, and car were damaged in the accident. She saw the crash, and recalled officers approaching the green truck. A woman was in the driver's seat trying to climb out the driver's side window, and a man was sitting in the passenger seat. She recalled that the airbags had deployed, but they had deflated by the time the officers approached the truck. Officer Medina told Ms. Lunceford to go back in her house. She came back outside and took photos of the accident scene and her damaged property.

Ms. Lunceford told the CHP officer who interviewed her that the woman had been driving. She concluded the woman was driving because she climbed out on the driver's side, but also because very little time passed between the accident and when she saw the woman climbing out of the window. She testified that she had "no doubt" that appellant was the passenger. On cross-examination, however, she acknowledged that she was basing her statement of who was driving on what she saw after the accident.

Mr. Lunceford saw the accident that damaged his vehicles. He was not able to see who was in the green truck until after the accident when he went outside. Mr. Lunceford saw appellant sitting in the passenger seat; he did not notice whether anyone was in the driver's seat. He saw the woman who had crawled out of the truck rolling around in the flatbed of his damaged truck.

During a subsequent interview, Mr. Lunceford told Officer Medina that he believed appellant was the passenger and Ms. Brown was the driver.

Dannetta Brown testified that she was in a relationship with appellant. She stated that she only remembered "bits and pieces" of the events that day. She remembered being in the driver's seat at the time of the crash and crawling out the driver's side window. Although she remembered being in the driver's seat, she did not remember driving. She remembered getting out of the vehicle, but not the crash itself. She consumed a 12-pack of beer and a bottle of whiskey that day, and she had taken drugs the prior day. She thought she was probably more drunk than appellant; she was "wasted," and in no condition to be in public, let alone drive.

On cross-examination, Brown indicated that her drinking was to blame for why she stated after the accident that appellant was driving. She stated that on the day of the accident, appellant also consumed numerous beers and whiskey. She was not letting appellant drive because of his intoxication. She had a conversation with appellant in jail and told him she would replace his green truck because she wrecked it.

Brown testified that that morning, she and appellant drove from Lake County to appellant's mother's house on Encanto and arrived at about 5:30 p.m. Appellant had apparently argued with his mother, his nephew, and Brown. Brown stated that she and appellant were standing in his mother's yard when police cars arrived and parked across the street. She and appellant got in the truck, with appellant in the driver's seat, and drove away. The next thing she remembered was climbing out of the driver's side window after the accident. She was not sure whether she was driving.

Daniel Green,*fn2 appellant's nephew, lived with appellant's mother at 3115 Encanto. He testified that, after the accident, he went to the scene. He saw appellant getting out of the passenger side and Brown crawl out of the driver's side window.

Four days after the accident, Brown told Daniel they had seen the police, kept driving, and that she and appellant had switched positions at the end of Encanto.

Anne Green, appellant's mother, testified that appellant drove by her house several times on the day of the incident. On the third time, officers were parked across the street. Appellant drove by and slowed down. He then continued on, stopping at the next intersection, when the officers began to pursue him. Anne and Daniel followed the officers in her car. Anne recalled the patrol sirens coming on two streets later. When she arrived at the crash scene, she saw appellant being removed from the vehicle in handcuffs. She took photos of the accident scene.

Anne stated that there had been an earlier dispute between Brown and her husband (not appellant), who was waiting at Anne's house. Anne and Brown had a heated argument.

On cross-examination, Anne testified that she called 9-1-1, but suggested that her call was not completed and speculated that somebody else called 9-1-1 after her. When police came to her house, Anne told them that appellant had been arguing with his girlfriend. Appellant was driving the truck as it passed by Anne's house.

On April 9, 2009, the jury found appellant guilty of evading an officer with willful disregard, driving under the influence, driving with a blood-alcohol level above the legal limit, and found true the allegation that appellant's blood-alcohol level was .15 percent or higher.

The prior conviction and prison term allegations were adjudicated during a bifurcated trial. On April 9, 2009, the trial court found appellant's identity proven as to the prior convictions and prison terms. On April 10, 2009, the jury found the existence of the prior driving under the influence conviction, the two prior prison terms, and the two prior convictions. Subsequently, the trial court found that the two prior convictions were serious felonies and thus qualified as strikes.

On May 29, 2009, the trial court sentenced appellant to a total prison term of 27 years to life.

On June 11, 2009, appellant filed a timely notice of appeal.

III. DISCUSSION

A. Jury Instruction.

Appellant contends his felony conviction for evading the police must be reversed because he was found guilty of evading police officers who had no legal right to detain him. Appellant argues that an officer's lawful performance of his or her duties is an element of Vehicle Code section 2800.2. The trial court's failure to instruct the jury on this element violated his Fifth Amendment due process right and his Sixth Amendment jury trial right.

Appellant likens felony evading to "resisting an arrest or detention, while driving." He points out that several statutes restrict or punish a defendant's resistance or non-cooperation with the police, such as section 148 (resisting arrest), section 69 (violence against an executive officer), and section 243, subdivision (b) (battery of a police officer). For most of these crimes, case law has established that the officer's lawful performance of his or her duties is an element of the offense. (See, e.g., In re Manuel G. (1997) 16 Cal.4th 805, 810 [element of section 69 violation is that threat was made during officer's lawful performance of duty or regarding future lawful act]; People v. Curtis (1969) 70 Cal.2d 347 [battery on a peace officer requires proof of lawful performance of officer's duty], abrogated on another point in People v. Gonzales (1990) 51 Cal.3d 1179, 1222.)

Vehicle Code section 2800.2 provides: "(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine. [¶] (b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs."

As relevant here, Vehicle Code section 2800.1 provides: "(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor if all of the following conditions exist: [¶] (1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer's motor vehicle is distinctively marked. [¶] (4) The peace officer's motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform."

Appellant was charged with violating Vehicle Code section 2800.2, subdivision (a), the elements of which are (1) a peace officer driving a motor vehicle was pursuing the defendant, (2) the defendant was driving a motor vehicle and willfully fled from, or tried to elude, the officer, intending to evade the officer, (3) during the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property, and (4) all of the following were true: (a) at least one lighted red lamp was visible from the front of the peace officer's vehicle, (b) the defendant saw or reasonably should have seen the red lamp, (c) the peace officer's vehicle was sounding a siren as reasonably necessary, (d) the peace officer's vehicle was distinctively marked, and (e) the peace officer was wearing a distinctive uniform. (CALCRIM No. 2181.) There is no express requirement in the statute that the peace officer be lawfully performing his or her duties.

Appellant contends that such an element should be implied because of other statutory provisions that pertain to police officers and the operation of their vehicles. For example, the requirement in Vehicle Code section 2800.1 that the pursuing officer must be using a distinctively marked car with red lights illuminated implicates Vehicle Code section 165, which provides, in relevant part: "An authorized emergency vehicle is" any "publicly owned vehicle" operated by, inter alia, a local agency "employing peace officers . . . for use by those officers in the performance of their duties." (Veh. Code, § 165, subd. (b)(1).) The effect of this section, according to appellant, is that police officers may only illuminate their vehicles' red lights "while they are 'in the performance of their duties.' " As another example, appellant cites Vehicle Code section 17004, which provides: "A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm or other emergency call." Appellant argues that, although Vehicle Code section 2800.2 contains no express requirement that the officer must be lawfully performing his duties, the incorporation of Vehicle Code section 2800.1's lights requirement, and "other conditions" imposed on a peace officer who uses a marked, official vehicle, "make it clear that an officer must be lawfully seeking to detain or arrest a suspect in order for the suspect to be in violation of [Vehicle Code section 2800.1] during an act of evading that detention."

Appellant contends it would make no sense if the lawful performance of the officer's duties were not implied, noting that it is "axiomatic that a person cannot be convicted of resisting an unlawful arrest."

The contention lacks merit. Unlike the statutes appellant cites, namely sections 69, 148, and 243, subdivision (b),*fn3 sections 2800.1 and 2800.2 of the Vehicle Code do not include language requiring that the officer be performing a lawful duty, and the absence of such language is dispositive. As our Supreme Court explained, "The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer ' "engaged in . . . the performance of . . . [his or her] duties" ' unless the officer was acting lawfully at the time the offense against the officer was committed. (People v. Gonzalez, supra, 51 Cal.3d at p. 1217, original italics; see also People v. Simons (1996) 42 Cal.App.4th 1100, 1109.) 'The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties," for purposes of an offense defined in such terms, if the officer's conduct is unlawful. . . . [¶] . . . [T]he lawfulness of the victim's conduct forms part of the corpus delicti of the offense.' (People v. Gonzalez, supra, 51 Cal.3d at p. 1217.)

"People v. Gonzalez, supra, 51 Cal.3d 1179, 1217-1223, applied this rule to the offense of aggravated assault against a peace officer engaged in the performance of his or her duties (§ 245, subd. (c)) and to the special circumstance of knowingly and intentionally killing a peace officer engaged in the performance of his or her duties (§ 190.2, subd. (a)(7)). If, however, a statute defining an offense does not require that the officer be engaged in the performance of his or her duties, the officer need not have been acting lawfully at the time of the offense. Thus, in People v. Simons, supra, 42 Cal.App.4th at pages 1108-1110, the Court of Appeal determined that the defendant violated section 417.8, prohibiting the drawing or exhibiting of a deadly weapon with the intent to prevent an arrest, whether or not the arrest was lawful. The court reasoned that had the Legislature intended the section to apply only to brandishing a weapon to prevent a lawful arrest, it would have added the 'engaged in duty' language used in similar statutes. (Simons, supra, 42 Cal.App.4th at pp. 1109-1110.)" (In re Manuel G., supra, 16 Cal.4th at pp. 815-816, italics added, fns. omitted.)

In People v. Simons, an opinion authored by now-Supreme Court Justice Corrigan, our colleagues in Division Three of this court considered, inter alia, whether section 148, subdivision (a) (misdemeanor resisting or obstructing a peace officer), is a lesser-included offense of section 417.8 (exhibiting a deadly weapon to prevent arrest). (42 Cal.App.4th at p. 1108.) The elements of section 148, subdivision (a), are: "(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations.]" (Simons, at pp. 1108-1109.) A defendant violates section 417.8 by drawing or exhibiting a firearm or a deadly weapon with the intent to resist or prevent the arrest or detention of oneself or another by a peace officer. There is no requirement in section 417.8 that the officer be engaged in the performance of his or her duties. The court concluded that a defendant violates section 417.8 by exhibiting a deadly weapon with the intent to prevent any arrest, "lawful or unlawful." In addition, the court observed that "[t]his result comports with section 834a, which sets forth the citizen's duty to refrain from using force or any weapon to resist either lawful or unlawful arrests. (People v. Curtis, supra, 70 Cal.2d at p. 352, disapproved on other grounds in People v. Gonzalez, supra, 51 Cal.3d at p. 1222.)" (People v. Simons, supra, 42 Cal.App.4th at p. 1109.)

Justice Corrigan explained: "The chief evil to be avoided by criminalizing exhibition of weapons is the potential for further violence, not only by the defendant, but also by others in response to the defendant's action. For example, section 417, subdivisions (a)(2) and (c) prohibit the brandishing of any firearm, loaded or unloaded. Similarly, when a firearm is used, there is no requirement in section 417.8 that it be loaded. The mere act of exhibiting a weapon, while harmless per se, is dangerous by virtue of the violence it may engender. When a defendant violates section 417.8, the potential for violence is the same whether the initiating arrest was lawful or unlawful. In this context, the Legislature has chosen to shift the controversy over the legality of the arrest from the streets to a civil courtroom. A defendant may pursue a civil remedy for unlawful arrest, but he may not exhibit a deadly weapon to avoid that arrest.

"Section 417.8 was added to the Penal Code by the Legislature in 1982, long after the court in People v. Curtis, supra, 70 Cal.2d at pages 354-355, discussed the significance of the 'engaged in duty' requirement and section 834a. [Citation.] We presume the Legislature was aware of that court's analysis. Additionally, the same legislative act also amended section 245. [Citation.] That section contains the 'engaged in duty' requirement for assaults on peace officers. (§ 245, subds. (b) & (c).) The Legislature could have quite easily included the same requirement in section 417.8. As noted above, a large number of similar statutes do contain the requirement. [Citation.] Consequently, the Legislature's failure to include in section 417.8 an element that the officer be engaged in the performance of official duties or that the arrest be lawful must be construed as an intentional election to forego that requirement. (People v. Drake (1977) 19 Cal.3d 749, 755.)" (People v. Simons, supra, 42 Cal.App.4th at pp. 1109-1110.) Based on this analysis, the court concluded that section 148, subdivision (a), was not a lesser included offense of section 417.8.

We find this analysis persuasive in the case at bar. Specifically, when a defendant who is driving flees from or attempts to evade a pursuing peace officer's motor vehicle under the conditions provided in Vehicle Code section 2800.1, subdivision (a), the potential for injury to persons and damage to property exists regardless of the lawfulness of the officer's request to stop. This is particularly the case where the defendant drives the pursued vehicle "in a willful or wanton disregard for the safety of persons or property," which elevates the offense to a felony, as provided in Vehicle Code section 2800.2. Further, as in People v. Simons, we find it significant that a number of other statutes concerning violence against or resistance to government officers include the requirement that the officer be engaged in the performance of official duties. (42 Cal.App.4th at p. 1109, citing examples including section 69 [resisting or deterring an executive officer by threat or violence]; section 241, subdivision (b) [assault on a peace officer]; section 243, subdivisions (b) and (c) [battery on a peace officer]; section 245, subdivisions (c) and (d) [assault on a peace officer with a deadly weapon or force likely to cause great bodily injury]; section 417, subdivision (c) [brandishing a firearm in the presence of a peace officer].) The Legislature could have amended Vehicle Code sections 2800.1 or 2800.2 to include a requirement that the officer be engaged in the performance of lawful duties. Under the circumstances, we construe its failure to do so as intentional.

B. Ineffective Assistance of Counsel.

Appellant contends his attorney provided ineffective assistance by failing to request a jury instruction on voluntary intoxication to negate the specific intent element of the evading charge. Appellant acknowledges that trial counsel made a tactical decision to pursue the theory that appellant was not driving the truck rather than a theory that he did not intend to evade the officers. However, according to appellant, because the ultimate goal was to avoid a felony conviction and punishment under the Three Strikes law, his counsel's failure to also pursue the alternative theory violated appellant's constitutional right to counsel.

In In re Scott (2003) 29 Cal.4th 783, 811-812, our Supreme Court explained a defendant's Sixth Amendment right to counsel as follows: " 'Petitioner had the right to the effective assistance of counsel at trial, and thus was "entitled to the reasonably competent assistance of an attorney acting as his diligent and conscientious advocate." [Citation.] A defendant claiming ineffective representation bears the burden of proving by a preponderance of the evidence both (1) that counsel's performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome. [Citations.]' (In re Ross (1995) 10 Cal.4th 184, 201; see also Strickland v. Washington (1984) 466 U.S. 668, 688, 694 . . . .)

"The United States Supreme Court has recently reemphasized that, in applying these principles, 'a court must indulge a "strong presumption" that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.' (Bell v. Cone (2002) 535 U.S. 685, 702.) Accordingly, a court must 'view and assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.' (People v. Ledesma (1987) 43 Cal.3d 171, 216; also quoted in [People v.] Scott [(1997)] 15 Cal.4th [1188,] 1212.)" (In re Scott, supra, 29 Cal.4th at pp. 811-812.)

We find no ineffective assistance of counsel here. Defense counsel argued that Brown took control of the truck and could only have done so on Encanto when the truck pulled to the right and looked as if it was going to stop. Instead of stopping, the truck continued on Encanto, then turned onto Paulson, then Dale, then Gordon, traveling at 30 to 50 miles per hour a total distance of one-quarter of a mile before crashing. In support of this theory, counsel elicited testimony from Ms. Lunceford that Brown was driving and appellant was the passenger. She saw Brown quickly get up to crawl out the driver's side window. Mr. Lunceford did not see Brown crawl out the window, but he saw appellant in the passenger seat looking dazed. In closing argument, counsel emphasized Brown's highly-intoxicated state and aggressive behavior in arguing that Brown was the one driving recklessly at high speed who crashed the truck. Counsel attempted to explain the weakness in Brown's testimony, her stated inability to remember who was driving, by pointing out that Brown was afraid of being charged with felony evading if she admitted to driving the truck. Counsel's strategy was to convince the jury that, although appellant was driving at the time the truck passed the officers on Encanto, he subsequently traded places with Brown and that she was the reckless driver who violated several Vehicle Code provisions and crashed the truck. The tactical decision to pursue this theory was reasonable in light of the facts that (1) appellant was driving the truck at the time he passed the officers on Encanto; (2) appellant had been drinking; and (3) he would not be subject to Three Strikes sentencing for misdemeanor evading (i.e., evading without the reckless driving element).

Nevertheless, appellant argues that counsel was ineffective for failing to argue the alternative theory that, due to his intoxicated state, he did not form the specific intent to evade the police. Appellant emphasizes the evidence of his intoxication, including the toxicologist's testimony that it could have affected his judgment and level of inhibition. On the other hand, according to appellant, the evidence that he switched seats with Brown was weak. Accordingly, he argues, to maximize his chance of avoiding a felony conviction, a reasonable attorney would have argued the theory of voluntary intoxication in the alternative.

First, "[f]ailure to argue an alternative theory is not objectively unreasonable as a matter of law." (People v. Thomas (1992) 2 Cal.4th 489, 531.) Appellant has not overcome the presumption that his counsel acted reasonably in presenting only the theory that he switched seats with Brown. This may have been a tactical decision in light of the unrebutted testimony that, as he drove past his mother's house, he looked right at the officer who ordered him to stop but kept on driving. In addition, the two theories are difficult to reconcile and the prosecutor would likely comment on this: on the one hand, appellant was so drunk he did not have the intent to evade the officers, but on the other hand, he had the presence of mind to switch seats with Brown. Although Brown testified that it was her idea to switch seats, her credibility on this point was undermined by the inconsistencies in her testimony and her behavior at the scene. We find no deficiency in counsel's performance.

C. Prior Conviction for Violating Section 245, Subdivision (a)(1).

Appellant contends his Fourteenth Amendment due process rights were violated when the trial court concluded that his 1984 conviction for violating section 245, subdivision (a)(1), was a strike. He argues that the record on appeal is insufficient to support the trial court's finding that the prior conviction was a serious felony within the meaning of the Three Strikes law.

1 Background.

On November 1, 1984, in Napa County Superior Court case No. 5870, appellant was convicted of violating section 245, subdivision (a)(1) (section 245(a)(1)), assault with a deadly weapon or force likely to cause great bodily injury. Both the complaint and the information in that case alleged that appellant committed "an assault upon BRYAN ODEMAN with a deadly weapon, to wit, KNIFE, or by means of force likely to produce great bodily injury, in violation of" section 245(a)(1). A jury found appellant "[g]uilty of ASSAULT WITH A DEADLY WEAPON, a violation of [section 245(a)(1)] as charged in the Information."

At the preliminary examination in the 1984 case, both the victim Odeman and an eyewitness testified that appellant confronted Odeman outside of a convenience store. Odeman and appellant moved the altercation to a high school parking lot where appellant stabbed Odeman in the back with a knife. When Odeman tried to get in his car to get to the hospital, appellant chased him with the knife. Odeman asked appellant why he stabbed him, and appellant replied, "Because that's the way I fight." Odeman had three wounds on the left side of his back that were closed with stitches.

In determining whether the 1984 conviction was a strike, the trial court below took judicial notice of trial court documents from the 1984 case, including the complaint, the information, the jury verdict form, and the transcript of the preliminary hearing. The court also took judicial notice of a 2000 Court of Appeal opinion in case No. A089304 in which our colleagues in Division Three of this court held that appellant's 1984 assault conviction was a serious felony and, thus, a strike. (People v. Michael Dean Green (Nov. 29, 2000, A089304) [nonpub. opn.].) The appellate court reviewed the transcript of the 1984 trial which established that appellant "used a deadly weapon (a knife) to inflict great bodily injury (several stab wounds) on his victim, Brian [sic] Odeman." (Ibid.) The court concluded that "appellant plainly committed a 'serious' felony for three strikes purposes." (Ibid.)

The trial court below ruled as follows: "As noted by the appellate decision, the Court is entitled to go beyond the face of the verdict form and review the entire record to determine whether or not the defendant did, in fact, personally inflict great bodily injury and probable use of a deadly weapon. [¶] The Court does find that [appellant] did personally use a deadly weapon in the commission of the 245(a)[(1)], based upon the preliminary hearing transcript and I also believe that this issue is res judicata, determined by the Appellate Court and on either of those two bases, the Court finds that 245(a)[(1)] is a strike."

2. Legal Principles.

A conviction is a strike within the meaning of the Three Strikes law if it is either a violent felony under section 667.5 or a serious felony under section 1192.7. (§ 667, subd. (d); People v. Blackburn (1999) 72 Cal.App.4th 1520, 1525.) A serious felony, for purposes of section 667, subdivision (a), is similarly defined as a felony listed in section 1192.7, subdivision (c). (§ 667, subd. (a)(4).)

Section 1192.7, subdivision (c), lists as serious felonies both specific, enumerated crimes and more generic descriptions of criminal conduct. (People v. Banuelos (2005) 130 Cal.App.4th 601, 604.) As potentially relevant here, section 1192.7, subdivision (c), defines as serious felonies the following: personally inflicting great bodily injury on a person other than an accomplice (§ 1192.7, subd. (c)(8)); personally using a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)); and "assault with a deadly weapon . . . in violation of Section 245" (§ 1192.7, subd. (c)(31)).

Section 245(a)(1) criminalizes assault with a deadly weapon or by means of force likely to produce great bodily injury. Not all violations of section 245(a)(1) constitute a serious felony for three strikes purposes. In People v. Rodriguez (1998) 17 Cal.4th 253, 261, the Supreme Court discussed the principles then applicable to determining whether section 245 convictions constituted strikes under section 1192.7: "Under that section, as relevant here, only those crimes are 'serious' felonies in which the defendant 'personally inflict[ed] great bodily injury on any person, other than an accomplice, or . . . personally use[d] a firearm' ([sec 1192.7], subd. (c)(8)), or 'personally use[d] a dangerous or deadly weapon' (id., subd. (c)(23)). One may thus violate section 245(a)(1) in two ways that would not qualify as 'serious' felonies under section 1192.7, subdivision (c): First, one may aid and abet the assault without personally inflicting great bodily harm or using a firearm. Second, one may commit the assault with force 'likely' to cause great bodily injury without, however, actually causing great bodily injury or using a deadly weapon. Accordingly, the least adjudicated elements of the crime defined in section 245(a)(1) are insufficient to establish a 'serious' felony."

In 2000, Proposition 21 added subdivision (c)(31) to section 1192.7. That subdivision provides, inter alia, that assault with a deadly weapon is a serious felony constituting a strike. (See People v. James (2001) 91 Cal.App.4th 1147, 1151.) The James court concluded that "Penal Code sections 667.1 and 1170.125 require that, if the current offense was committed on or after March 8, 2000, a determination whether a prior conviction alleged as a serious felony is a prior strike must be based on whether the prior offense resulting in that conviction was a serious felony within the meaning of the three strikes law on March 8, 2000." (Ibid.)

When determining whether a prior section 245 conviction qualifies as a serious felony, the prosecution is entitled to go beyond the least adjudicated elements of the conviction and use the entire record to prove that the offense falls within one or more of the enumerated crimes or descriptions of criminal conduct in section 1192.7, subdivision (c). (People v. Rodriguez, supra, 17 Cal.4th at pp. 261-262; People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero).)

"On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (People v. Delgado (2008) 43 Cal.4th 1059, 1067.)

3. Analysis.

Appellant does not dispute the jury's finding that he was convicted of a violation of section 245, subdivision (a)(1). Rather, he contends the evidence in the record does not support the trial court's finding that the section 245(a)(1) verdict was based on appellant's use of a weapon. He argues that, although the evidence showed that appellant may have had, and may have used, a knife, it also showed that appellant used his fists during the altercation and did not have a knife. According to appellant, the holding order "was not based on a finding that appellant did, or did not, inflict great bodily injury or whether appellant did, or did not, use a deadly weapon; the trial transcript from 1984 was not presented to appellant's trial court; and the language of the verdict form simply used the phrase "assault with a deadly weapon." Finally, appellant argues that, although judicial notice was taken of an appellate decision relating to another case involving appellant in which the 1984 section 245(a)(1) conviction was determined to be a strike, the trial court's finding that the appellate determination was "res judicata" is erroneous.

Appellant's arguments are unavailing. Viewing the record in the light most favorable to the judgment, the trial court's finding that the 1984 conviction was a strike is amply supported. Both the complaint and the information alleged that appellant committed assault with a knife. The transcript of the preliminary hearing conducted on August 24, 1984, contains the testimony of the victim and an eyewitness who both testified that appellant used a knife and stabbed the victim. The verdict form, signed and filed on November 1, 1984, indicates that the jury found appellant guilty of assault with a deadly weapon; there was no alternative phrasing regarding great bodily injury. The record of conviction establishes that appellant's conviction of assault with a deadly weapon was based on his use of a knife.

Assuming that its consideration by the trial court was appropriate, the 2000 appellate opinion in People v. Michael Dean Green (Nov. 29, 2000, A089304) [nonpub. opn.] provided additional support for the trial court's determination. That case involved, inter alia, drug charges, and was resolved by a negotiated disposition, including appellant's no contest plea to a single strike based on his November 1, 1984 conviction for violating section 245(a)(1). The issue on appeal*fn4 was whether that 1984 conviction in fact qualified as a strike (i.e., the same issue presented to the trial court here). Division Three of this court took judicial notice of the 1984 trial transcript in Napa County Superior Court action No. 5870 and determined, based on its review of that transcript, that "appellant, in fact, used a deadly weapon (a knife) to inflict great bodily injury (several stab wounds) on his victim, Brian [sic] Odeman." The court concluded that the offense was a serious felony and, thus, a strike. (Ibid.) We agree that the trial court mistakenly described the effect of this opinion as "res judicata," but appellant further contends the determination that the 1984 prior conviction was a serious felony can have no collateral estoppel effect in this case. We need not resolve the question, however, because, as discussed above, the transcript of the preliminary hearing was sufficient to establish appellant's use of a deadly weapon.

D. Prior Conviction for Violating Section 243, Subdivision (d).

Appellant raises a number of arguments with respect to the trial court's finding that his prior conviction for violating section 243, subdivision (d) (section 243(d)), was a strike. He argues inadequacy of the record on appeal, insufficiency of the evidence, and violation of the terms of the 1988 plea bargain.

1. Background.

Appellant's 1988 conviction in Napa County Superior Court case No. 7059 arose out of events on November 5, 1987, involving two different victims. The information alleged assault upon Diane Ross with a deadly weapon, to wit, hands and fists, and by means of force likely to produce great bodily injury in violation of section 245(a)(1) (count 1); battery with infliction of serious bodily injury upon Diane Ross in violation of section 243, subdivision (d) (count 2); and assault upon Mark Osgood with a deadly weapon, to wit, a buck knife, and by means of force likely to produce great bodily injury in violation of section 245(a)(1) (count 3). The information also included allegations that appellant personally inflicted great bodily injury and had served prior prison terms. Count 3 also alleged personal use of the knife (§ 1192.7, subd. (c)(23)).

On October 11, 1988, appellant pleaded no contest to count 2, a violation of section 243, subdivision (d), and admitted the two prior prison commitments; the other counts and enhancements, including the allegations of personal infliction of great bodily injury, were dismissed.

In considering whether appellant's section 243, subdivision (d), conviction constituted a strike, the court took judicial notice of relevant pages of the preliminary hearing transcript and the plea proceeding transcript. Based on testimony regarding the victim's injury from the preliminary hearing, the court found the 1988 conviction involved appellant's infliction of great bodily injury on the victim, and thus the conviction qualified as a strike.

The 1988 transcripts were not included for filing in this court with the record on appeal. Pursuant to California Rules of Court, rule 8.340, subdivision (b), counsel for appellant promptly submitted a notice of a number of omitted exhibits and documents, including the 1988 transcripts. An augmentation to the record was filed on September 14, 2009, but the 1988 transcripts again were not included. Instead, the trial court clerk submitted a declaration dated September 8, 2009, stating that "[a] search of the entire record held at Napa Superior Court does not contain the following requested documents:" the 1988 preliminary hearing transcript or the 1988 plea proceedings transcript.

On May 5, 2010, after the appeal was fully briefed, respondent filed a motion to augment the record with the 1988 transcripts. In its moving papers, respondent stated that, "respondent has recently been informed by the Napa District Attorney's office that the clerk has now located these transcripts." No explanation for the discovery of the previously-missing transcripts was provided. We granted the motion, and the transcripts were filed on June 4, 2010. This court also permitted, and has received, supplemental briefing to address any issues raised by the inclusion of these transcripts.

2. Legal Principles.

Section 1192.7, subdivision (c)(8), provides that "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice" constitutes a serious felony qualifying as a strike. "Although the terms 'great bodily injury' and 'serious bodily injury' have been described as being 'essentially equivalent' (People v. Burroughs (1984) 35 Cal.3d 824, 831, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89) or having 'substantially the same meaning' (People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375, citing People v. Kent (1979) 96 Cal.App.3d 130, 136), they have separate and distinct statutory definitions. Serious bodily injury is defined as 'a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.' (§ 243, subd. (f)(4).) By contrast, great bodily injury is defined as 'a significant or substantial physical injury.' (§ 12022.7, subd. (f).)" (People v. Taylor (2004) 118 Cal.App.4th 11, 24, italics omitted (Taylor).) An injury need not be "permanent," "prolonged," or "protracted" to be significant or substantial under section 12022.7. (People v. Escobar (1992) 3 Cal.4th 740, 748-750.)

"When reviewing the sufficiency of the evidence underlying the conviction, our inquiry is limited to whether any rational trier of fact could have found the necessary elements of the crime beyond a reasonable doubt. [Citations.] We review the record in its entirety when making that determination, viewing the evidence in the light most favorable to the prosecution. [Citations.] In other words, '. . . the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of a solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] Thus, we ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' [Citations.]" (People v. Brown (1995) 35 Cal.App.4th 1585, 1598.)

3. Analysis.

a. Certification of the augmented record.

First, appellant renews his objections to the inclusion of the 1988 transcripts in this appellate record "due to their unknown origins and lack of authenticity." Specifically, appellant objects that the transcripts were photocopies; the certification page at the end of the October 11, 1988, transcript of the plea proceeding was not signed by the court reporter; and none of the transcripts was certified by the Napa County Superior Court clerk.

Appellant cites People v. Preslie (1977) 70 Cal.App.3d 486 (Preslie). "Before the appellate court can properly act upon a request to take judicial notice of a document or other record from the trial court which is purportedly part of that record, it must be assured that the original is actually on file in the superior court and that the copy of the document or record is in fact a true and correct copy. Without such assurance the court cannot act with confidence." (Id. at p. 494, fn. omitted.) The Preslie court observed that "[t]his general rule undoubtedly has its exception, but it is the burden of the party requesting judicial notice to show good cause for not furnishing certified copies." (Id. at p. 495, fn. 8.)

Respondent contends that Preslie is distinguishable because the uncertified documents in that case were merely attached to the opening brief whereas here, the transcripts were transmitted to this court by the superior court clerk.

A defendant in a criminal matter is entitled to an appellate record adequate to permit " 'meaningful appellate review.' " (People v. Seaton (2001) 26 Cal.4th 598, 699.) "If a record can be 'prepared in such a manner as to enable the court to pass upon the questions sought to be raised,' then there is no rational likelihood or legally cognizable possibility of injustice to the appealing defendant even though a verbatim record certified by the official court reporter cannot be supplied. [Citation.] 'Inconsequential inaccuracies or omissions in a record cannot prejudice a party; if in truth there does exist some consequential inaccuracy or omission, the appellant must show what it is and why it is consequential.' " (People v. Fuentes (1955) 132 Cal.App.2d 484, 488; People v. Chessman (1950) 35 Cal.2d 455-460; People v. Freeman (1994) 8 Cal.4th 450, 509 ["defendant 'bears the burden of demonstrating that the appellate record is not adequate to permit meaningful appellate review' "].)

Appellant has not met this burden. He has not raised any issues that cannot be adequately reviewed due to any deficiencies in the transcripts. However, there is no explanation in the record for the absence of a certificate from the clerk to the effect that the copies in the three volumes of transcripts are true and correct copies of the originals on file in the superior court. We will direct that the clerk provide the proper certification to this court within 30 days of the date of this decision.

b. Sufficiency of the record.

i. Sufficiency of the evidence that the victim's injury

was sufficiently severe.

Appellant next contends that the record in the 1988 prior contained insufficient evidence for the trial court to determine that the victim's fractured jaw constituted "great bodily injury." According to appellant, great bodily injury is "more severe" than serious bodily injury, and requires a substantial injury that causes serious impairment to the victim.

Appellant relies primarily on Taylor, supra, 118 Cal.App.4th 11, but his reliance is misplaced. In Taylor, a jury found the defendant guilty of battery causing serious bodily injury, but also found not true an allegation under section 12022.7 that the defendant personally inflicted great bodily injury on the victim. (Taylor, supra, 118 Cal.App.4th at p. 21.) At sentencing, the trial court found that the defendant's battery conviction was a serious felony because the defendant had personally inflicted great bodily injury. (Id. at p. 22.) On appeal, the Attorney General argued for affirmance, contending that serious bodily injury and great bodily injury were equivalent and that the jury's verdict absolving the defendant of causing great bodily injury must be disregarded as an inconsistent verdict. (Ibid.)

The Court of Appeal rejected this position, explaining that "[i]n this case, . . . the trial court gave the jury different legal definitions of the terms great bodily injury and serious bodily injury. The lawyers distinguished between the two concepts in their closing arguments, and the jury itself distinguished between them in finding that Taylor had inflicted serious bodily injury, but not great bodily injury. The jury was never told that these terms had the same meaning. In these circumstances, we cannot apply the usual assumption that the two terms have essentially the same meaning." (Taylor, supra, 118 Cal.App.4th at p. 26.) The narrow holding in Taylor, that a defendant is entitled to the benefit of a jury finding that a "serious bodily injury" is not also a "great bodily injury," has no application here.

Appellant also relies on language in People v. Nava (1989) 207 Cal.App.3d 1490, 1498 that a fracture could be "great bodily injury" if "it results in a serious impairment of physical condition." However, Nava holds only that a trial court may not instruct the jury that any bone fracture is a serious injury as a matter of law because such instruction usurps the fact-finder's role. (Id. at pp. 1494-1498.) In addition, Nava applied the now-discredited standard of People v. Caudillo, supra, 21 Cal.3d 562, to conclude that bone fractures that do not constitute "severe" and "protracted" injury will not satisfy section 12022.7.

Meanwhile, respondent argues in its supplemental brief that the Legislature "broadened great bodily injury while leaving serious bodily injury unchanged" when it amended section 12022.7 in 1977, changing the definition of "great bodily injury" from identical to that of "serious bodily injury" contained in section 243 to its present wording, i.e., "a significant or substantial physical injury." Further, "[t]o the extent that great bodily injury is broader, it now includes serious bodily injury. [Citation.] Put differently, the amendment did not exclude any sort of serious bodily injury from the broadened scope of great bodily injury."

We need not determine whether great bodily injury is in fact a broader construct than serious bodily injury. In People v. Burroughs, supra, 35 Cal.3d at p. 831, overruled on other grounds in People v. Blakeley, supra, 23 Cal.4th at p. 89, our Supreme Court found that "serious bodily injury" and "great bodily injury" are essentially equivalent. (See also People v. Sloan (2007) 42 Cal.4th 110, 117, to the same effect.) Several Court of Appeal cases have also concluded that the terms "serious bodily injury" and "great bodily injury" have substantially the same meaning. (See, e.g., People v. Arnett (2006) 139 Cal.App.4th 1609, 1613-1615; People v. Chaffer (2003) 111 Cal.App.4th 1037, 1042; People v. Hawkins, supra, 108 Cal.App.4th at p. 531; People v. Beltran (2000) 82 Cal.App.4th 693, 696; People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375; People v. Moore (1992) 10 Cal.App.4th 1868, 1871; People v. Kent, supra, 96 Cal.App.3d at p. 136.) We see no need to depart from this line of authority.

Turning to the evidence, the issue to be decided in determining whether appellant's conviction for battery with serious bodily injury was a qualifying conviction was whether it involved the personal infliction of great bodily injury on the victim who was not an accomplice. There is no dispute that the victim's injury was personally inflicted by appellant and that she was not an accomplice. The disputed issue below was whether her injury, which appellant admitted constituted serious bodily injury, also constituted great bodily injury. Under the case law we have just discussed, appellant's admission to inflicting serious bodily injury is effectively an admission that he inflicted great bodily injury.

Appellant contends there was no evidence that the injury was substantial or that it impaired the victim's physical condition. This amounts to further argument that serious bodily injury is different and distinct from great bodily injury, an argument we have rejected. With respect to the facts, the trial court recited extensively from the transcript of the preliminary hearing, including testimony from the doctor who examined the victim. He testified that the bone in her jaw was broken; that it would take a strong blow to cause such a fracture; that the x-ray showed "enough displacement to make it easily diagnosed;" that she had a large area of bruising and multiple contusions to her face and neck; that the range of motion of her jaw was reduced to about 50 percent of normal; that she was quite tender to palpation at the fracture site. He recommended a liquid diet and follow-up. Based on the preliminary hearing transcript and the other documents used to prove a prior conviction, a reasonable trier of fact could find beyond a reasonable doubt that in committing battery with serious bodily injury, appellant also personally inflicted great bodily injury. (See People v. Woodell (1998) 17 Cal.4th 448, 461; People v. Johnson (1980) 26 Cal.3d 557, 578.)

ii. Whether the severity of the injury was fully litigated.

Finally, appellant argues that, because the severity of the victim's injury was not fully litigated in case No. 7059 back in 1988, the trial court in the present case erred in relying on the 1988 record to determine whether that offense was a serious felony. Appellant contends that, because no jury ever determined the severity of the injury, and appellant himself did not admit the severity of the injury as part of his plea, and the only evidence pertaining to the injury was the "one-sided" evidence presented by the prosecution at the preliminary hearing, the trial court had no legitimate basis upon which to determine that the 1988 injury constituted great bodily injury. This contention has no merit.

In addition to apparently arguing that the circumstances of his plea agreement in 1988 effectively shielded him from a determination that the conviction qualified as a strike, which is clearly wrong, appellant seems to suggest that the court had no business attempting to resolve a factual dispute in determining that the 1988 conviction was a serious felony. This mischaracterizes the nature of the inquiry. In People v. McGee (2006) 38 Cal.4th 682 (McGee), an opinion authored by Chief Justice George, our Supreme Court explained: "With regard to the second issue noted above-the nature of the inquiry required (and permitted) in this context under California law-we observe that the matter presented is not, as the Court of Appeal appears to have assumed, a determination or finding 'about the [defendant's earlier] conduct itself, such as the intent with which a defendant acted.' Instead, it is a determination regarding the nature or basis of the defendant's prior conviction-specifically, whether that conviction qualified as a conviction of a serious felony. California law specifies that in making this determination, the inquiry is a limited one and must be based upon the record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted. If the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier criminal proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law. (See, e.g., People v. Woodell, supra, 17 Cal.4th 448, 452-461.) The need for such an inquiry does not contemplate that the court will make an independent determination regarding a disputed issue of fact relating to the defendant's prior conduct (see id. at p. 460), but instead that the court simply will examine the record of the prior proceeding to determine whether that record is sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law. This is an inquiry that is quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court." (McGee, supra, 38 Cal.4th at p. 706, italics added.)

We note that, in quoting from this portion of the McGee opinion, appellant chose to omit the sentences we have italicized. As we read McGee, it is appropriate for a court to examine the record of a prior proceeding to determine "the nature or basis" of the prior conviction, "whether that conviction qualified as a conviction of a serious felony," including whether the conviction was based on conduct that would constitute a serious felony. (McGee, supra, 38 Cal.4th at p. 706.)

Appellant also relies on People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo). In Trujillo, our Supreme Court considered whether a defendant's statement to a probation officer, made after his guilty plea to inflicting corporal injury had been accepted, was admissible as part of the record of conviction such that it could be used by a subsequent court in determining whether that prior conviction was a serious felony. The statement at issue was the defendant's admission that he had stabbed the victim with a knife. The accusatory pleading had alleged use of a dangerous or deadly weapon, but this allegation was stricken as part of the plea bargain, and, apparently, the only remaining evidence that the defendant had used a knife was his post-plea statement to the probation officer.

The court concluded that a defendant's post-plea statements are not part of the record of conviction "because such statements do not 'reflect[] the facts of the offense for which the defendant was convicted.' (People v. Reed [(1996)] 13 Cal.4th [217,] 223.) We recognized in [McGee, supra,] 38 Cal.4th 682, 691, that in determining whether a prior conviction is for a serious felony 'the nature of the conviction is at issue.' We explained that 'the relevant inquiry in deciding whether a particular prior conviction qualifies as a serious felony for California sentencing purposes is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted.' (Ibid., italics added.)

"A statement by the defendant recounted in a post-conviction probation officer's report does not necessarily reflect the nature of the crime of which the defendant was convicted. In the present case, for example, the prosecution did not attempt to prove that defendant used a knife and, instead, entered into a plea bargain in which it dismissed the allegation that defendant used a deadly or dangerous weapon and committed an assault with a deadly weapon. The prosecution could not have compelled defendant to testify, and thus could not have used defendant's subsequent admission that he stabbed the victim to convict him. Once the court accepted his plea, defendant could admit to the probation officer having stabbed the victim without fear of prosecution, because he was clothed with the protection of the double jeopardy clause from successive prosecution for the same offense. (Texas v. Cobb (2001) 532 U.S. 162, 173.) Defendant's admission recounted in the probation officer's report, therefore, does not describe the nature of the crime of which he was convicted and cannot be used to prove that the prior conviction was for a serious felony. .

"Barring the use of a defendant's statement reflected in a probation officer's report to prove that an alleged prior conviction was for a serious felony is consistent with our rule in [Guerrero] that in determining the nature of a prior conviction, the court may look to the entire record of the conviction, 'but no further.' ([Guerrero], supra, 44 Cal.3d 343, 355.) The reason for this limitation was to 'effectively bar[] the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.' (Ibid.) Permitting a defendant's statement made in a post-conviction probation officer's report to be used against him to establish the nature of the conviction would present similar problems, creating harm akin to double jeopardy and forcing the defendant to relitigate the circumstances of the crime.

"A defendant's statements in the probation officer's report differ in this respect from a reporter's transcript of the preliminary hearing, which is admissible to prove the nature of the prior conviction. (People v. Reed, supra, 13 Cal.4th at pp. 223-229; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1531.) The transcript of a preliminary hearing contains evidence that was admitted against the defendant and was available to the prosecution prior to the conviction. The transcript of a preliminary hearing, therefore, sheds light on the basis for the conviction." (Trujillo, supra, 40 Cal.4th at pp. 179-180.)

We fail to see how Trujillo advances appellant's position. As Trujillo makes clear, "in determining the truth of a prior conviction allegation, the trier of fact may 'look beyond the judgment to the entire record of the conviction' [citation] 'but no further.' " (Trujillo, supra, 40 Cal.4th at p. 177, quoting Guerrero,supra, 44 Cal.3d at pp. 355-356.) For example, the prosecution may not introduce live testimony to establish the nature of the prior offense. (People v. Reed, supra, 13 Cal.4th at p. 230.) The record of conviction includes the accusatory pleading, documents that reflect the defendant's plea of guilty or no contest, and a reporter's transcript of a preliminary hearing. (Guerrero, supra, 44 Cal.3d at pp. 345, 355-356; Trujillo, supra, 40 Cal.4th at p. 177.) There is no suggestion that the trial court relied on a post-plea statement by the defendant or on evidence that was not properly part of the record of conviction.

Here, in determining whether the 1988 conviction qualified as a serious felony, the trial court relied on the transcript of the 1988 preliminary hearing in which evidence regarding appellant's conduct and the victim's injury was presented. Appellant had the right to confront and cross-examine witnesses (see Reed, supra, 13 Cal.4th at p. 223), and he availed himself of that right. The witnesses testified under oath, and other than the certification issue discussed earlier, there is no real dispute regarding the accuracy of the reporting of the proceedings. (Ibid.) The trial court's examination of the transcript of the preliminary hearing as part of the record " 'to determine the nature or basis of the crime of which [appellant] was convicted' " was entirely appropriate. (Trujillo, supra, 40 Cal.4th at p. 179, italics omitted.)

Appellant argues that the "preliminary hearing transcript cannot shed light on the 'great bodily injury' question because the evidence of the nature of appellant's [sic] injury were not facts upon which the 1988 Prior court relied upon in finding appellant guilty of the crime for which he was convicted. It was inappropriate for appellant's trial court, in this case, to examine the preliminary hearing and make factual findings to expand the necessarily-included elements of this prior conviction. . . . Examining the 1988 Prior evidence about a theory of guilt that was voluntarily abandoned by the prosecutor through a plea negotiation is not the same as looking behind the record to examine the nature of the elements at-issue in a defendant's conviction."

Although we are not sure we entirely understand appellant's argument, he seems to contend that because resolution of the 1988 case involved a plea bargain and the dismissal of great bodily injury allegations, it was not permissible for the trial court to determine whether that prior conviction was for a serious felony in that it involved the infliction of great bodily injury. The case law we have discussed is to the contrary, and we reject the argument.

c. Whether principles of contract law preclude use of prior

conviction as a strike.

Appellant contends that, as part of his plea bargain in 1988, he was promised that his section 243(d) conviction would not be used as a serious felony prior conviction in the future. He contends that he "bargained for an elimination of the 'serious felony' categorization of his 1988 Prior [and that] [t]hat agreement must be upheld by this court at this time." Further, he contends that "[t]he clear and unambiguous terms of appellant's agreement with the prosecution in his 1988 Prior were that his conviction would not be considered a 'serious felony' prior conviction," that he was "given the specific, express inducement to plea which included a promise that his conviction would not be considered a 'serious felony' prior," and that "offering appellant the promise that his conviction was not a 'serious felony' without following through with that promise would be an improper inducement rendering that plea constitutionally invalid . . . ." This is a dramatic mischaracterization of the record, as we shall explain.

The process of plea bargaining "contemplates an agreement negotiated by the People and the defendant and approved by the court." (People v. Orin (1975) 13 Cal.3d 937, 942.) It is settled that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York (1971) 404 U.S. 257, 262.) "Failure of the state to honor the agreement violates the defendant's due process rights for which the defendant is entitled to some remedy." (People v. Lopez (1998) 66 Cal.App.4th 615, 636.) However, "[t]his does not mean that any deviation from the terms of the agreement is constitutionally impermissible;" instead, "the variance must be 'significant' in the context of the plea bargain as a whole to violate the defendant's rights." (People v. Walker (1991) 54 Cal.3d 1013, 1024.) " 'Where a defendant's plea is "induced by misrepresentations of a fundamental nature" such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed. [Citations.]' [Citation.]" (People v. Hollins (1993) 15 Cal.App.4th 567, 574; see also People v. DeVaughn (1977) 18 Cal.3d 889, 896; People v. Coleman (1977) 72 Cal.App.3d 287, 292-293.)

"Traditionally, courts have viewed plea agreements 'using the paradigm of contract law. [Citations.]' [Citation.] Analogizing to contract law, courts examining plea bargains 'should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties' reasonable expectations. [Citations.]' [Citation.]" (People v. Knox (2004) 123 Cal.App.4th 1453, 1458.) "The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code, § 1641.)

We have reviewed the transcript of the 1988 plea proceeding, and it is clear from this record that appellant was not induced to enter the plea based on a promise that, should he be convicted of another felony in the future, the section 243(d) conviction would not qualify as a serious felony prior. At the hearing, the court summarized the terms of the negotiated resolution, that appellant was pleading no contest to count two, a violation of section 243(d), admitting the two prior prison commitments, and the other allegations would all be dismissed. The court also stated that, at the sentencing hearing, the possible consequences could range from probation with a year of jail time (which appellant had already served) to a maximum of six years in prison (a maximum of four years on the section 243(d) violation and one year each for the two prior prison commitments). The court then asked appellant, "Is that what you understand is going to happen, Mr. Green?" Appellant responded, "Yes, it is."

The court then went off the record so appellant could go over the waiver form with his attorney and fill it out. Back on the record, the court reviewed with appellant that he was entering his plea of no contest pursuant to People v. West*fn5 and thus was not admitting guilt; and that appellant was giving up his rights to a jury trial, to cross-examine witnesses, to present evidence on his own behalf, and his privilege against self-incrimination. Appellant indicated that he had no questions about the rights he was giving up. The court reiterated that appellant was eligible for probation, so the matter would be referred to the probation department. Probation could be granted for a term of up to five years; other terms could include counseling, restitution, and other reasonably related conditions. The court made clear that if appellant were granted probation but was found to have violated its terms, he could be sentenced to prison; if probation was denied, the prison term would range from four to six years. Again, the court asked whether appellant had any questions. Appellant answered, "No, that's understood."

At this point, the court asked the prosecutor: "Would that act as a serious felony any time in the future, if Mr. Green were to commit another offense?" The prosecutor answered, "I don't think the 243(d) is a serious felony." The court remarked, "This doesn't have that direct consequence, at least in that one that one of the convictions that you did suffer did have for you."

It is apparent from the context of the court's comments that, in the course of explaining the consequences of appellant's plea bargain, the court wondered whether the section 243(d) conviction was a serious felony. There is no indication whatsoever that this was a bargained-for condition of the plea or that the prosecutor had made any promise in this regard. There has been no breach of appellant's reasonable expectations. (See People v. Knox, supra, 123 Cal.App.4th at p. 1458.)

Moreover, the prosecutor's response, that the section 243(d) conviction was not a serious felony, is technically correct. Violation of section 243(d) is not listed as a serious felony. (§ 1192.7, subd. (c).) However, the additional factor of personal infliction of great bodily injury makes it a serious felony under section 1192.7, subdivision (c)(8).

Relying on People v. Toscano (2004) 124 Cal.App.4th 340, 345, appellant contends his plea agreement was ambiguous, and that, under contract principles, the ambiguity must be resolved in his favor. Toscano involved a written plea agreement which provided in part that " 'Defendant [and] Prosecution agree that Defendant shall have the right to a motion to strike prior.' " (Id. at p. 342.) The court held that this term of the plea agreement unambiguously permitted a motion to strike on any ground, rejecting the Attorney General's argument that the term was limited solely to a motion to strike the prior conviction under section 1385 pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (People v. Toscano, supra, 124 Cal.App.4th at p. 344.) Here, the record contains no written plea agreement and no ambiguity.

However, even if the colloquy regarding whether the conviction would qualify as a serious felony amounted to a misrepresentation made to appellant, we have no basis for concluding that it was a "fundamental" misrepresentation that "induced" appellant to enter his no contest plea. (See Hollins, supra, 15 Cal.App.4th at p. 574.) Under the plea agreement, appellant was eligible for probation and faced a maximum prison term of six years. As originally charged, he faced a possible prison term of 20 to 25 years to life. Nothing in the record suggests that, in accepting the plea bargain and avoiding exposure to a much longer sentence, appellant relied on the court's comment that the battery conviction "doesn't have [the] direct consequence" of being a serious felony. Nothing in the record supports an inference that appellant would have rejected the plea bargain absent that comment by the court.

In his supplemental reply brief, appellant quotes without explanation a portion of section 667: " 'The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction . . . .' " (§ 667, subd. (d)(1).) Once again, appellant selectively omits critical language. The rest of the sentence provides: ". . . and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor." (§ 667, subd. (d)(1).) Reading the sentence in its entirety and in context, it is apparent that the section pertains to distinguishing between felonies and misdemeanors and does not advance appellant's position.

E. Jury Trial on Whether Prior Convictions Were Strikes.

Appellant contends his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process were violated when the trial court denied his request for a jury trial on the issue of whether his prior convictions were strikes. The trial court denied the request based on McGee, supra, 38 Cal.4th 682, in which the Supreme Court held that whether a prior felony conviction is a strike is an issue for the court, not the jury.

Appellant argues that "McGee should not apply" because "[t]he issue here went beyond merely the 'fact' of the conviction;" rather it was "[t]he character and nature of the conviction" that was "the determining factor."

This question has already been decided against appellant by our Supreme Court in McGee, supra, 38 Cal.4th 682, which was and remains controlling authority both below and in this Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

IV. DISPOSITION

The judgment is conditionally affirmed, with directions to the Napa County Superior Court to provide, within 30 days of the date of this opinion, proper certification of the augmented portions of the record, as specified in this opinion.

We concur:

Lambden, J.

Richman, J.


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