IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
May 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES EDWARD CARROLL, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F6546)
The opinion of the court was delivered by: Raye P. J.
P. v. Carroll CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant James Edward Carroll of first degree residential burglary and assault with a deadly weapon; it also found true that he used a deadly weapon (a knife) in the course of committing the burglary, and that the resident was present at the time of the crime.
At sentencing, the trial court rejected defendant's argument that a 1978 federal conviction for bank robbery was not a "serious" felony under California law (Pen. Code, § 1192.7, subd. (c)(19)),*fn1 and also declined his invitation to exercise its discretion under section 1385 to strike one or both of the recidivist findings. Defendant was sentenced to an aggregate term of 36 years to life, comprised of a 25-year-to-life term for the residential burglary, plus a one-year enhancement for the knife use and five years for each of the two recidivist findings under section 667, subdivision (a); the court stayed a 35-year-to-life sentence on the assault with a deadly weapon conviction under section 654.
On appeal, defendant renews his challenge to the status of his 1978 federal conviction as a serious felony under California law, and contends the court abused its discretion in denying his request to strike any of the recidivist findings because it failed to consider significant mitigating factors, including that his most serious priors occurred when he was much younger, many of his convictions were nonviolent or were drug or alcohol related, and he has serious health problems. We shall affirm.
In light of the issues involved in this appeal, we recite briefly the facts underlying defendant's conviction. Defendant began beating on the door of an acquaintance's apartment one afternoon and yelling he was going to kill the man. When the acquaintance refused to open the door, defendant broke the apartment's front window, jumped through it, and started trying to stab the man while the victim put up his hands and tried to defend himself.
Officers followed a blood trail and ultimately located defendant running away from law enforcement officers.
Federal Bank Robbery as a Strike
To prove the 1978 federal conviction, the prosecution submitted People's exhibit 15, which included two certified documents: the grand jury indictment in the United States District Court for the Central District of California of James Edward Carroll III aka James Edward Stevens in case No. CR 78-559; and the judgment and commitment order signed by the federal trial judge in July 1978. The judgment states that defendant, "upon his plea of guilty and the Court being satisfied there is a factual basis for the plea, has been convicted of the offense of Robbery of Bank, in violation of Title 18, section 2113(a), United States Code, as charged in Count 3 of the Indictment." Count 3 of the indictment alleged that, on or about May 19, 1978, defendant "by force and violence and by intimidation, knowingly took from victim teller [C.L.] $694.00, belonging to and in the care, custody, control, management and possession of Security Pacific National Bank . . ."
The present trial court concluded this was sufficient to find true beyond a reasonable doubt that defendant suffered the federal conviction, and further determined beyond a reasonable doubt that this conviction constituted a prior serious felony conviction within the meaning of section 667, subdivision (a)(1).
The California Supreme Court's opinion in People v. Miles (2008) 43 Cal.4th 1074 (Miles) is dispositive. Miles involved the same statute at issue here: a 1976 version of section 2113(a) of title 18 of the United States Code. This statute embraces "two distinct categories of offenders" (Miles, supra, 43 Cal.4th at p. 1080): the first paragraph includes persons who by force and violence or by intimidation took from the person or presence of another anything of value belonging to or in the custody of a financial institution (id. at pp. 1080-1081). The second paragraph includes anyone who enters the building of a financial institution with the intent to commit any felony affecting the institution or to commit any larceny. (Id. at p. 1081.)
Under California law, a serious felony for purposes of section 667 includes a "bank robbery" (§ 1192.7, subd. (c)(19)), which is not a substantive crime under California law. Bank robbery is defined, however, as taking anything of value belonging to or in the custody of a financial institution by force, violence, or intimidation from the person or presence of another. (§ 1192.7, subd. (d).) This is substantially equivalent to the offense in the first paragraph of the 1976 version of section 2113(a) of title 18 of the United States Code; however, the conduct described in the second paragraph would be only second degree burglary under California law, which is not a serious felony. (Miles, supra, 43 Cal.4th at pp. 1081-1082 & fn. 6.)
Turning to the sufficiency of the evidence to establish the elements of the recidivist finding, Miles stated that a "court document, prepared contemporaneously with the conviction, as part of the record thereof, by a public officer charged with that duty, and describing the nature of the prior conviction for official purposes, is relevant and admissible on this issue." (Miles, supra, 43 Cal.4th at p. 1082.)
The primary evidence in Miles was a judgment and commitment order stating that the nature of the offense was "'18 U.S.C. 2113 (a) (d) (e), armed bank robbery.'" (Miles, supra, 43 Cal.4th at p. 1079.) Miles acknowledged the principle that if there are multiple ways in which to commit an offense and the evidence does not indicate the manner of commission, "a court must presume the conviction was for the least serious form of the offense." (Id. at p. 1083.) However, "the trier of fact may presume that an official government document, prepared contemporaneously as part of the judgment record and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances of the prior conviction." (Ibid.) A trier of fact is also entitled to draw reasonable inferences from the document at issue. (Ibid.)
Miles concluded that there were various rational bases for an inference that the judgment intended to describe the robbery form of title 18, United States Code section 2113(a) rather than the second degree burglary form. First, the inclusion of a description in addition to a bare citation to the statute indicated an attempt to delineate the conduct involved (absent contrary indicia). (Miles, supra, 43 Cal.4th at p. 1085.) Second, while the federal statute itself does not use the term "bank robbery," the description in the first paragraph corresponds closely to the common legal definition of robbery, as opposed to the second paragraph's commonly understood description of burglary; the judgment's use of the phrase indicated a violation of the first paragraph. (Id. at pp. 1085-1088.) In addition (though not pertinent here), the references to other subdivisions of the statute in the judgment indicated the commission of a robbery rather than a burglary. (Id. at p. 1088.)
Defendant asserts Miles is not controlling "because of the substantial factual differences between the federal bank robbery conviction in Miles and the facts regarding the alleged prior here contained in people's exhibit 15." We are not persuaded. There is substantial and unrebutted evidence (i.e., the form of the indictment and the judgment and commitment order) that his title 18, United States Code section 2113(a) conviction was for violation of the first paragraph of the federal statute and, therefore, a serious felony under California law: The indictment unambiguously alleges that defendant violated section 2113(a) by taking money from a bank employee "by force and violence and by intimidation." Defendant pled guilty to the conduct so charged. The indictment does not allege the elements of the nonstrike offense set forth in the second paragraph of the statute.
There was no error.
II. Abuse of Discretion in Denial of Romero Motion
Defendant also contends that the trial court abused its discretion in denying a Romero motion to strike one of his qualifying prior offenses for purposes of sentencing under the three strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) It did not.
A trial court has limited discretion under section 1385 to strike prior convictions in three strikes cases. The court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the denial of a section 1385 motion under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.)
There was no abuse of discretion. The court noted that the crimes here, two serious and violent felonies, were committed just days after defendant's most recent release from prison. His prior convictions were numerous, beginning with juvenile offenses and including jail escapes, bank robbery, armed robbery, felony burglary, auto burglary, two convictions of petty theft with a prior, and many parole violations. Indeed, defendant's record supports the conclusion defendant is not someone who has been willing or able to conform his conduct to the conditions and restrictions of society, and the court's finding that "this particular case does fall completely within the scope of the three strikes law" lies well within its discretion. In view of defendant's long and continuous criminal history bookended by serious and violent offenses, the court did not abuse its discretion in refusing to strike one of defendant's qualifying strike offenses.
The judgment is affirmed.
We concur: NICHOLSON J. BUTZ J.