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The People v. Issiah W. Jackson

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


July 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ISSIAH W. JACKSON, DEFENDANT AND APPELLANT.

(Super. Ct. No. 07F05622)

The opinion of the court was delivered by: Nicholson , J.

P. v. Jackson

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Issiah W. Jackson of second degree murder (Pen. Code, § 187, subd. (a))*fn1 of his girlfriend, January Keene, with an enhancement for personally using a firearm and causing great bodily injury (§ 12022.53, subd. (d)). He was also convicted of two counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)) and the jury found true allegations that he had three strike priors (§§ 667, subds. (a)-(i), 1170.12). Defendant was sentenced to 110 years to life in prison.

On appeal, defendant contends the murder conviction must be reversed because the jury deliberations were suspended without cause and the trial court erred in giving the "firecracker" instruction. Defendant also raises various challenges related to his prior serious felony convictions. He contends the jury was required to determine if the priors were for serious felonies; using documentary evidence to prove them violated his confrontation rights; there was insufficient evidence the two State of Washington priors were serious felonies; and double jeopardy prohibits considering evidence not previously found true by a jury. We find no error and affirm.

FACTS

In late 2006, defendant and January Keene had a turbulent on-again, off-again relationship. They argued a lot and defendant was sometimes violent. Once, defendant pinned Keene to the refrigerator, choked her and threatened to kill her. Defendant told Keene's prior boyfriend that she often upset him and knew how to push his buttons. Defendant became angry and jealous when Keene's male friends visited her. Defendant took a swing at one. Defendant argued with Keene about it and threatened to kill her.

On January 1, 2007, while Keene was visiting Christine Marsh, defendant came over and hit Keene in the face. Defendant had previously asked Marsh about Keene and whether she was a cop or a prostitute. According to Marsh, one minute defendant was ranting and raving; the next he was calm. On that and on another occasion, defendant had a gun.

Later on January 1, Brian Berry visited Keene. Defendant was there and was upset that Berry had come by. Defendant asked Keene, "How do you know I wouldn't peel this dude's cap?"*fn2 Defendant told Keene "he wasn't going to do just like her last boyfriend, he was going to do more." Keene's prior boyfriend had shoved her head into a wall.*fn3

About 1:00 a.m. on January 5, 2007, the police stopped defendant at 30th and L Streets for running a red light. Keene was in the passenger seat. The seat was reclined and Keene's eyes were closed. She had a small amount of blood on her temple and a weak pulse; she was not responsive. When the paramedic moved her head, his hand was covered in blood and a gray substance.

At the time of the stop, defendant was on the phone to 911. Defendant told both the 911 operator and the police who stopped him that Keene was shot at Franklin Boulevard and 21st Avenue; he claimed he was trying to get her to the hospital.

Keene was taken to the UC Davis Medical Center. An autopsy showed she had been shot in the back of her head. She died within minutes of being shot. Burned gunpowder on her skin indicated the gun was close, within six inches of her head. The pathologist removed two small bullet fragments, consistent with a .22-caliber bullet.

The police took defendant to the area of Franklin Boulevard and 21st Avenue in an attempt to confirm his story about the shooting. There was glass in the roadway. A patrol officer had discovered the glass around midnight; three vehicles had been vandalized and their windows broken, but none of the owners wanted to report the vandalism. Officers searched the area but found no bullets, casings or other signs of a shooting. Canvassing the area turned up no information about a shooting that night.

The police searched for evidence defendant was the shooter; they found no weapon in defendant's car. Criminalists analyzed both defendant and the car for gunshot residue. The conclusion from the testing of defendant's hands was that defendant had either fired a gun, had been near a gun that had been fired, or had handled something contaminated with gunshot residue. There were particles characteristic of gunshot residue on the inside of defendant's left sleeve, his exterior right sleeve, and on his torso and the rear waistband of his pants. The criminalist opined the gun that killed Keene was inside the car or at least pointed into the car. She admitted the evidence was consistent with a shooter outside the car.

In the car with defendant's belongings, police found a letter from Keene to defendant. The letter was dated December 19, 2006. In it, Keene complained about defendant's lack of intimacy and that he treated her like a prostitute. She told him to keep his money and Christmas gifts and not to come around anymore. "This is FINAL." (Original underscoring.)

In defense, defendant offered the testimony of several residents of the Franklin Boulevard and 21st Avenue area who claimed they heard a shooting that night. They did not report it to the police out of fear.

DISCUSSION

I

The Trial Court did not Abuse its Discretion in Suspending Jury Deliberations

Defendant contends the murder conviction must be reversed because the jury deliberations were suspended for several days without cause. Defendant contends the trial court made an inadequate inquiry of the jury before deciding to suspend deliberations and the court should have seated more alternates in anticipation of scheduling problems due to vacations and other reasons. Defendant contends the suspension was prejudicial because it came during the critical stage of deliberations in a wholly circumstantial case. There was the definite possibility that jurors might discuss the case with outsiders during the long recess.

Background

The first trial ended in a mistrial. The second trial began May 21, 2009. In addition to the 12-member jury, three alternates were selected. During the evidentiary portion of the trial, one alternate replaced a juror whose father had passed away.

The jury began deliberations late in the day June 23, 2009. On June 30, Juror No. 11 left the court a message that she could not be present as her husband was ill. The court and counsel discussed replacing her with an alternate. Because deliberations would have to begin anew with an alternate, the court declared, "[W]e are doing our best to keep this panel constituted in its original form." During this discussion, the court noted other jurors would soon be unavailable due to prepaid vacations, school schedules, and, in one case, a scheduled medical procedure. The court sent the jury home, to return the next day.

The jury resumed deliberations on July 1 and reported an impasse on one count. The jury had verdicts on two counts; the vote was 10 to 2 on the third. Over defense objection, the court gave the "firecracker" instruction.

The next day, July 2, the jury sent the court a note requesting to continue deliberations beyond that day, starting on July 17. The jury stated it was not at an impasse and was still working on reaching a verdict, but it acknowledged the various scheduling conflicts the week of July 6 through 10 and July 13 through 17. The court announced it intended to take verdicts on the two counts and then have the jury return later for deliberations on the third count. The defense objected to that procedure, claiming it violated defendant's jury trial rights and due process. Counsel complained the People were trying to get a peek at what the jury was doing before deciding how to proceed. The defense wanted a mistrial on the third count, if verdicts were taken on the other two. The court determined "that it's in everyone's interest to go ahead and take the two verdicts."

The jury returned verdicts of guilty on counts two and three, the two counts of felon in possession of a firearm.

Under questioning by the court, the foreman of the jury confirmed the jury believed it could potentially reach a verdict with further deliberations. The court excused the jury until the afternoon of July 16, 2009. The court again admonished the jury not to discuss the case with anyone or visit the scene of the crime.

The jury returned July 16 and reached a verdict on the final count. The jury found defendant not guilty of first degree murder, but guilty of second degree murder. It found the firearm enhancement true.

Analysis

Initially, the People contend defendant has forfeited this contention by failing to object to the suspension of deliberations. (People v. Bolden (2002) 29 Cal.4th 515, 561-562 [where defendant did not object to suspension of deliberations, claim is not preserved for appellate review].) The People contend defendant objected only to taking the two verdicts, not to the suspension of deliberations.

Defendant's objection was targeted primarily at taking verdicts on the two counts on which the jury had reached a unanimous decision, but he did object to the proposal "to take verdicts and then, basically, excuse the jury, continue this case for potentially 19 days, 20 days, have them come back, and then start deliberating again." While defendant's objection to suspending deliberations could have been clearer, we decline to resolve this issue by finding forfeiture.

The trial court has discretion to suspend jury deliberations for a period of time for good cause. (§§ 1050, 1121; People v. Santamaria (1991) 229 Cal.App.3d 269, 276 (Santamaria).) That discretion, however, is not unlimited, but must be "'grounded in reasoned judgment and guided by legal principles and policies.'" (Santamaria, supra, 229 Cal.App.3d at p. 276.) In considering whether to suspend jury deliberations, a court must be mindful of the explicit statutory right of the People, the defendant, the victims, and the witnesses to an "expeditious disposition" of a criminal case. (§ 1050, subd. (a).)

In Santamaria, there was an 11-day suspension of jury deliberations due to the judge's absence. The reviewing court found no good cause for the suspension. "The record in the present case discloses no administrative duties, congested calendar, or any other exceptional circumstances to explain the continuance; instead, the record indicates only that the judge was to be 'away,' and that at least two of the days involved were holidays. If there was any established necessity for the delay, it is not apparent from this record." (Santamaria, supra, 229 Cal.App.3d at p. 277.)

The court was also concerned with the timing of the suspension because it occurred during deliberations. "A long adjournment of deliberations risks prejudice to the defendant both from the possibility that jurors might discuss the case with outsiders at this critical point in the proceedings, and from the possibility that their recollections of the evidence, the arguments, and the court's instructions may become dulled or confused. [Citations.]" (Santamaria, supra, 229 Cal.App.3d at pp. 277-278.) Finally, the court noted there was an alternative to suspending deliberations. A judge could have been substituted under the provisions of section 1053. (Santamaria, supra, at p. 278.)

We find no abuse of discretion in suspending deliberations. Unlike in Santamaria, here there was good cause for suspending jury deliberations; the suspension was to accommodate the schedules of jurors who had vacations or school, and one who had a medical operation planned. Indeed, the jury requested the recess. Thus, "the adjournment was for the convenience of the jurors, not for the judge's personal convenience . . . ." (People v. Bolden, supra, 29 Cal.4th at p. 562.) As Santamaria recognized, adjournments for "weekends, holidays, sick jurors, or other imperative factors" are usually "clearly within the acceptable range of a trial court's discretion." (Santamaria, supra, 229 Cal.App.3d at p. 281.)

Defendant contends the court had alternatives available to suspending deliberations. He faults the trial court for failing to inquire whether the jurors who had scheduling conflicts (vacation, school, and a medical operation) could nonetheless have continued to deliberate by changing their plans. We note defendant did not request such further inquiry at trial and it is sheer speculation that any of the jurors would have indicated he or she could continue without financial hardship.*fn4 There were three jurors with scheduling conflicts and only two alternates left. Another juror had a scheduling conflict in the future, which might have become a factor if the jury had to begin deliberations anew. Further, the entire jury understood these three jurors were unable to deliberate for a period of time and raised the issue on its own, indicating the other jurors' willingness to be accommodating. This acceptance that these jurors were truly unavailable supports our conclusion that the trial court did not abuse its discretion in suspending deliberations to accommodate them.

Although the recess occurred during a sensitive time, during deliberations, defendant has not shown any prejudice from the good cause delay.*fn5 After reconstituting, the jury acquitted on first degree murder and convicted defendant of second degree murder. This verdict shows a careful consideration of the charges and the evidence instead of merely a quick verdict. "His claim that the jury's [murder] verdict, returned on the same date court proceedings were reconvened, was the direct and prejudicial result of the recess, is none other than speculation." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1162.)

II

It was not Error to Give the Firecracker Instruction

Defendant contends the second degree murder conviction and the accompanying firearm enhancement must be reversed because it was error for the trial court to give the "firecracker" instruction approved by this court in People v. Moore (2002) 96 Cal.App.4th 1105 (Moore).*fn6 The trial court gave this instruction, over defense objection, when the jury advised it was at an impasse on one count. Defendant contends this instruction violated the principles set forth in People v. Gainer (1977) 19 Cal.3d 835 (Gainer).

In Allen v. United States (1896) 164 U.S. 492, 501-502 [41 L.Ed. 528, 531], the Supreme Court approved a charge, a so-called "dynamite" charge, that encouraged jurors holding the minority view to re-examine their views in light of the views expressed by those in the majority, noting that a jury should consider that the case must at some point be decided. In Gainer, supra, 19 Cal.3d 835, our high court disapproved Allen in two respects. "We therefore hold it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried." (Id. at p. 852, fn. omitted.)

Defendant argues Moore's "firecracker" instruction given by the trial court here violated Gainer because: (1) the instruction put pressure on the jury to reach a verdict even though the court did not tell the jury that the case must be decided at some point; and (2) the instruction divorced the jurors from the bedrock principle that each juror must decide the case for himself or herself by suggesting the jurors experiment with reverse role playing. Defendant faults the instruction for failing to remind jurors not to abandon their views simply to accede to the majority view or in the interest of judicial economy in getting the case decided.

In Moore, we concluded the same instruction as given here did not violate Gainer. (Moore, supra, 96 Cal.App.4th at pp. 1120-1121.) The instruction did not exert a coercive effect on jurors; rather, it "instructed that the 'goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard to the consequences of your verdict [or] regardless of how long it takes to do so.'" (Id. at p. 1121, original italics.) The instruction "directed the jurors to consider carefully, weigh and evaluate all of the evidence presented at trial, to discuss their views, and to consider the views of their fellow jurors." (Id. at p. 1121.) We noted the instruction told the jurors it was their duty to deliberate with the goal of arriving at a verdict "'if you can do so without violence to your individual judgment.'" (Ibid., original italics.) "[T]he jury was never directed that it was required to reach a verdict, nor were any constraints placed on any individual juror's responsibility to weigh and consider all the evidence presented at trial." (Ibid.)

The same Moore instruction was also upheld by the Sixth Appellate District in People v. Whaley (2007) 152 Cal.App.4th 968, 982-983. Whaley specifically rejected the contentions defendant raises here regarding the use of role playing. (Ibid.) We agree with the majority in Whaley that the neutral suggestion of role playing did not violate Gainer. (People v. Whaley, supra, 152 Cal.App.4th at pp. 982-983.)

We reject defendant's claims and continue to approve of the Moore supplemental instruction. The trial court did not err in giving the supplemental "firecracker" instruction.

III

The Jury was not Required to Determine if Defendant's

Priors were Serious Felonies

Defendant was charged with three strike priors. Two of them arose from robbery convictions in the State of Washington. Because robbery in Washington does not contain the same elements as robbery in California, the trial court determined these two priors qualified as prior convictions under section 667, subdivisions (a) and (b) through (i). Defendant contends this finding by the court violated his constitutional right to a jury determination of whether his prior conduct constituted a strike.

As defendant recognizes, in People v. McGee (2006) 38 Cal.4th 682, 709, the California Supreme Court held a defendant was not entitled to have a jury decide whether his out-of-state prior conviction qualified as a strike under California law. As defendant also recognizes, we are bound to follow McGee. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

IV

Consideration of Documentary Evidence of Defendant's

Priors did not Violate the Confrontation Clause

To prove the truth of a prior conviction, the trier of fact may look to the entire record of conviction. (People v. Guerrero (1988) 44 Cal.3d 343, 355.) To prove defendant's California robbery conviction, the People offered a section 969b packet and a California Law Enforcement Communications System (CLETS) database printout. Defendant contends the use of these documents violated his confrontation rights because these documents were testimonial hearsay. In a supplemental brief, defendant applies this contention to the documents -- informations, probable cause statements, plea forms and prison packet -- used to prove his Washington priors as well.

In Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177, 194], the United States Supreme Court held that the confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination."

In People v. Taulton (2005) 129 Cal.App.4th 1218, 1221, the court held that "records of prior convictions are not 'testimonial'" and thus not subject to Crawford's confrontation requirements. "Crawford supports a conclusion that the test for determining whether a statement is 'testimonial' is not whether its use in a potential trial is foreseeable, but whether it was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue." (People v. Taulton, supra, at p. 1224.) The court found Crawford's mention that business records were not "testimonial" was "enlightening." (Ibid.) It concluded prior conviction records under section 969b "are prepared to document acts and events relating to convictions and imprisonments. Although they may ultimately be used in criminal proceedings, as the documents were here, they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue. Therefore, these records are beyond the scope of Crawford . . . ." (People v. Taulton, supra, at p. 1225.)

In People v. Morris (2008) 166 Cal.App.4th 363, the defendant challenged the admission of a certified CLETS rap sheet to prove his alleged prison priors. The court agreed with Taulton that CLETS rap sheets were not testimonial hearsay and their admission did not violate defendant's confrontation rights under Crawford. (Id. at p. 373.)

Defendant contends Taulton and Morris do not survive Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314] (Melendez-Diaz). There, the Supreme Court found three "certificates of analysis" showing the results of forensic analysis performed on seized cocaine fell within the "core class of testimonial statements" and their admission violated Crawford. (Id. at p. ___ [174 L.Ed.2d at p. 321].) Defendant contends the 969b packet is testimonial under Melendez-Diaz.

In Melendez-Diaz, the Supreme Court discussed clerk's certificates authenticating official records as the one class of evidence that has traditionally been admissible even though it was prepared for use at trial. The Supreme Court emphasized that the clerk's authority in this area is extremely narrow: the clerk may certify only the correctness of a copy of a record kept by the office, not to provide an interpretation of a record's content, substance, or effect. (Melendez-Diaz, supra, 557 U.S. at p. ___ [174 L.Ed.2d at p. 328].) "A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant." (Id. at p. ___ [174 L.Ed.2d at p. 329], original italics.)

We find the section 969b packet is analogous to the clerk's certificate, not the forensic analysis concluding the substance the defendant possessed was cocaine. The analyst from the Department of Corrections and Rehabilitation who created the priors packet did not create any records for the sole purpose of providing evidence against defendant; she compiled a group of documents, and then authenticated the group of records. This is exactly what the Supreme Court described as the limited certifying role of a clerk. The individual documents, such as the chronological history, the abstract of judgment and defendant's fingerprints, were not created for this prosecution. The same analysis applies to the CLETS printout. The system was established to serve the needs of all law enforcement. (Gov. Code, § 15151.)

In short, and unlike Melendez-Diaz, the documents at issue here, section 969b packets and rap sheets, are nothing more than compilations of pre-existing records and documents related to defendant's prior convictions. They are not memorializations of investigations newly undertaken in connection with this case. Admission of the section 969b packet and the CLETS printout did not violate defendant's confrontation rights.

In his supplemental brief, defendant makes no additional argument why the documents admitted to prove his State of Washington priors are testimonial. For the 1996 prior, these documents were certified copies of the information, probable cause certificate, plea form and transcript of guilty plea. For the 1998 prior, they were certified copies of the information, declaration for determination of probable cause, statement of defendant on plea of guilty, the amended information with the prosecutor's statement, the warrant of commitment, the minute order and transcript of judgment and sentencing. The supplemental brief does not explain why these documents are testimonial hearsay.

In a subsequent argument challenging the sufficiency of the evidence (see part V, post), however, defendant contends the probable cause statements are testimonial hearsay based on police reports. Defendant's briefing of the challenge to the probable cause statements as hearsay is contrary to the rules of appellate practice. An appellate brief must "[s]tate each point under a separate heading or subheading summarizing the point . . . ." (Cal. Rules of Court, rule 8.204(a)(1)(B).) Defendant's headings give no notice that defendant is challenging the probable cause statements as testimonial hearsay and the failure to head an argument properly as required by the Rules of Court may forfeit the claim. (Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) The People, however, concede that the probable cause statements are hearsay. We accept the concession that the probable cause certificates should not be used to determine whether defendant's State of Washington priors are strikes. Whatever the merit of this point, which we need not decide, we will address defendant's contentions without considering the probable cause statements.

The remaining documents from the State of Washington were certified court documents, created for another purpose. Like the section 969b packet, the admission of this compilation does not violate defendant's confrontation rights.

V

There is Sufficient Evidence the State of Washington

Robberies are Serious Felonies

Defendant contends there is insufficient evidence that the State of Washington robbery priors qualified as strikes under California law. He contends that the law of robbery in California, unlike in Washington, requires an intent to permanently deprive the victim of the property and there is no basis from which a trier of fact could infer the requisite intent for the State of Washington priors.

To qualify as a strike, a conviction in another jurisdiction must meet all of the elements of the California felony that qualifies as a strike. (See § 1170.12, subd. (b)(2), see also § 667.5, subd. (f).) When deciding whether an out-of-state prior is a serious felony, "the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all the elements of the comparable California serious felony offense." (People v. Myers (1993) 5 Cal.4th 1193, 1195; People v. Riel (2000) 22 Cal.4th 1153, 1204 (Riel).) The record need only contain evidence from which the trier of fact can reasonably presume the existence of the required elements. (See Riel, supra, 22 Cal.4th at p. 1205; People v. Johnson (1989) 208 Cal.App.3d 19, 24.) When the record does not disclose the facts of the offense actually committed, courts presume the prior conviction was for the least offense punishable under the law of the convicting state. (People v. Mumm (2002) 98 Cal.App.4th 812, 815-816.)

The records of conviction of defendant's 1996 and 1998 convictions in the State of Washington for robbery (without considering the statements of probable cause, as discussed ante), show that in both cases defendant took, or participated in the taking of, money from someone by force. The plea form for the 1996 conviction stated, "I participated in taking money off Donny Stover by force . . . ." In the transcript of the plea, defendant admitted that he or someone he was with took money or something else that belonged to Stover and he did not think he had permission to do so. The plea form for the 1998 conviction stated, "I am sorry. I took some money forcibly from L. Sharpley without her consent on 12/3/97 in Pierce County. I apologize to her." Defendant told the court the words on the plea form were as if his own.

"'Robbery is the taking of "personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property."' [Citation.]" (People v. Davis (2009) 46 Cal.4th 539, 608.) The intent to deprive permanently is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of the value or enjoyment. (People v. Avery (2002) 27 Cal.4th 49, 58.) The State of Washington required the same intent to deprive permanently up until the decision in State v. Komak (1989) 113 Wash.2d 810, 816-817 [783 P.2d 1061, 1064]. (See Riel, supra, 22 Cal.4th at p. 1206.) Thus, we must determine whether the record of conviction for each State of Washington prior permits the inference of an intent to deprive permanently.

"[T]he intent required for robbery . . . is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 643.) "[A]n intent to permanently deprive someone of his or her property may be inferred when one unlawfully takes the property of another. [Citations.]" (People v. Morales (1993) 19 Cal.App.4th 1383, 1391.)

The records of conviction are sufficient to show that defendant's State of Washington convictions for robbery qualify as strikes because his crime would constitute robbery in California. A trier of fact may reasonably infer that one who forcibly takes money from another does so with an intent to permanently deprive the owner of the money. "It may reasonably be inferred that at the time defendant demanded and received the wallet it was his intention to deprive the owner of it permanently. [Citation.]" (People v. Carroll (1970) 1 Cal.3d 581, 584.) Money, unlike, for example, a car, is not something that can be used temporarily and then returned to the owner; money can be used but once. One normally takes money in order to spend it and defendant did not believe the money was his. He admitted he did not have permission to take Stover's money and he apologized to Sharpley.

Sufficient evidence supports the trial court's findings that defendant's State of Washington robbery convictions qualified as strikes.

VI

Using the Records of Conviction to Determine the State of Washington Priors were Strikes did not Violate Double Jeopardy

In a confusing argument, defendant contends that using his statements in the plea agreements to find he had an intent to permanently deprive his victims of their property violates double jeopardy. Defendant contends that in determining if a prior conviction is a strike, the trier of fact is limited to those facts specifically found true by the jury or admitted by defendant.

In support of this double jeopardy argument, defendant relies on a line of United States Supreme Court cases: Jones v. United States (1999) 526 U.S. 227 [143 L.Ed.2d 311]; Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; and Shepard v. United States (2005) 544 U.S. 13 [161 L.Ed.2d 205]. The problem with this reliance is that these cases do not address double jeopardy; instead, they involve questions of due process and the right to a jury trial.

In Shepard v. United States, supra, 544 U.S. at page 26, the court held: "We hold that enquiry under the [Armed Career Criminal Act] to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Here the trial court used the same type of documents, especially the plea agreement and the colloquy between the court and the defendant, to determine if the State of Washington priors qualified as strikes. The trial court, therefore, followed a procedure sanctioned by the United States Supreme Court.

In People v. Guerrero, supra, 44 Cal.3d 343, the California Supreme Court determined what documents could be used to determine if a prior conviction was a serious felony. The court reviewed the decision in People v. Alfaro (1986) 42 Cal.3d 627, which held proof that a prior conviction was a serious felony was limited to matters necessarily established by the prior judgment of conviction. The Guerrero court overruled Alfaro and instead adopted the rule that in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction. (People v. Guerrero, supra, 44 Cal.3d at pp. 356, 355.) The court found the rule was fair because "it effectively bars 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." (Id. at p. 355.)

In finding the use of the entire record of conviction to determine if a prior conviction is a serious felony was fair because it avoided possible double jeopardy harm, the California Supreme Court impliedly found such use does not violate double jeopardy. Defendant offers no convincing reason for this court to revisit the issue.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. BUTZ , J.


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