IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANTWINE THEODORE WILLIAMS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F03756)
The opinion of the court was delivered by: Hull , J.
P. v. Williams 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Antwine Theodore Williams was convicted of second degree robbery (Pen. Code, § 211; undesignated statutory references that follow are to the Penal Code). The trial court sustained prior strike and serious felony allegations (§§ 667, subds. (a)(1), (b)-(i), 1170.12) and sentenced defendant to 15 years in state prison.
On appeal, defendant contends the trial court erred in finding his prior Illinois conviction for armed robbery was a serious felony and a strike, and that allowing records of his prior convictions to be authenticated by affidavit violated his Sixth Amendment right to confrontation. In addition, we deem him to have raised the issue of whether the trial court violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) by making factual findings regarding his prior convictions. We affirm the judgment.
We briefly summarize the facts of defendant's crime, which are unnecessary to the resolution of this appeal.
Edward M. was waiting at a Sacramento bus stop when defendant offered to sell him a bus pass. After Edward M. purchased a pass, defendant badgered him to buy another. When Edward M. refused, defendant punched Edward M. in the face, choked him, and pounded his head against the bus stop. Defendant then took Edward M.'s wallet and walked away quickly. A nearby police officer detained defendant.
The Illinois Conviction
Defendant contends the trial court erred in finding his 2002 Illinois conviction for armed robbery (720 ILCS 5/18-2(a)(1)) was a serious felony and a strike. He asserts the People presented no evidence at the trial on the strike and serious felony allegations related to the conduct which led to the prior conviction. Applying the "least adjudicated elements" test, defendant concludes the Illinois armed robbery statute is broader than its California counterpart as the Illinois statute is a general intent crime which does not require an intent to deprive the owner of the property for a substantial amount of time.
After the parties rested, the trial court held a hearing on the People's in limine motion to treat one of defendant's two prior Illinois convictions for armed robbery as a serious felony and strike. Attached to the People's motion were copies of the record of his convictions, the indictment, and a transcript of his change of plea hearing.
The Illinois record of conviction related defendant's conviction on two counts of armed robbery (720 ILCS 5/18-2(a)(1)) in 2002. The indictment stated defendant and co-defendants: "Knowingly took Similac baby formula from the person or presence of Clarence Moore, by the use of force or threatening the imminent use of force, and they carried on or about their person or were otherwise armed with a dangerous weapon other than a firearm, to wit: a baseball bat."
The transcript of the change of plea hearing for the Illinois convictions contained the following factual basis for the plea:
"[T]his incident occurred on July 24th of 2001 at St. Ambrose Church, which is located in the city of Chicago. At approximately noon on that date, the defendant went to the church and was denied baby formula due to lack of proper documentation. The two victims: Mr. Benny Thigpen and Mr. Clarence Moore are workers at the food pantry at St. Ambrose. The defendant then left.
"And approximately an hour later the defendant returned while armed with a bat along with two co-defendants: Contrell Williams and Vernell Anderson. All three individuals entered the church. Vernell Williams, Antwine Williams, and Contrell Williams entered the area.
"It was a 67-year-old woman seated in the church food pantry waiting to pick up her food, and she was struck in the head with a bat and fell to the ground. At which time [the] other defendants went to the back where Mr. Thigpen and Mr. Moore were both--Mr. Thigpen and Mr. Moore were struck in the head with the bat by this defendant.
"At which time the defendant and both co-defendants all fled with cases of Similac baby formula and left the area. All the victims did require hospitalization due to their injuries." Defendant's counsel at the Illinois plea hearing stipulated this would be the testimony at trial.
The People's motion asserted the trial court could consider the factual basis of the plea, and robbery, as defined in Illinois, includes a specific intent to steal. At the hearing on the motion, defendant argued Illinois, unlike California, defined robbery as a general intent crime in which the perpetrator did not have to intend to permanently or temporarily deprive the owner of the property. Defendant also claimed the factual basis of the plea was inadmissible hearsay.
The trial court ruled the prior conviction was a serious felony and a strike. It found that armed robbery in Illinois had the same mental elements as robbery in California. In addition, the trial court found the factual basis of the plea was admissible as an adoptive admission, which established that defendant's conduct in the prior conviction constituted robbery, as defined in California.
After the jury returned the guilty verdict, the trial court held a trial on the existence of the Illinois prior conviction. The People submitted records of the indictment and prior conviction, which the trial court admitted over defendant's confrontation clause objection. The trial court then found defendant suffered the prior Illinois conviction.
Defendant asserts the trial court could not find his Illinois conviction was a serious felony and a strike.
Defendant was convicted in Illinois of violating 720 Illinois Compiled Statutes 5/18-2, which states in pertinent part: "(a) A person commits armed robbery when he or she violates Section 18-1 [720 ILCS 5/18-1]; and [¶] (1) he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon other than a firearm." 720 Illinois Compiled Statutes 5/18-1(a) defines robbery as: "A person commits robbery when he or she takes property, except a motor vehicle covered by Section 18-3 or 18-4 [720 ILCS 5/18-3 or 720 ILCS 5/18-4], from the person or presence of another by the use of force or by threatening the imminent use of force."
A prior conviction counts as a strike if it is a serious felony as defined in section 1192.7, subdivision (c), or a violent felony as defined in section 667.5, subdivision (c). (§ 667, subd. (d)(1).) Robbery (§ 211) is a serious felony. (§ 1192.7, subd. (c)(19).)
In determining whether a prior conviction is a serious felony and a strike, "the trier of fact may look to the entire record of the conviction" but may look "no further[.]" (People v. Guerrero (1988) 44 Cal.3d 343, 355, italics omitted.) The record of the conviction includes all relevant documents found in the court file of the prior conviction. (People v. Castellanos (1990) 219 Cal.App.3d 1163, 1172.) Hearsay evidence is inadmissible unless the statements fall under an exception to the hearsay rule. (People v. Reed (1996) 13 Cal.4th 217, 230.)
"[I]f the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the serious felony nature of the prior conviction depends upon the particular conduct that gave rise to the conviction, the record is insufficient to establish that a serious felony conviction occurred." (People v. Miles (2008) 43 Cal.4th 1074, 1083.)
Defendant claims the People submitted no evidence regarding the facts of the Illinois armed robbery offense. He maintains we cannot consider the plea transcript on appeal because it was never admitted on the post-verdict trial on the existence of the Illinois prior conviction or at the hearing on the in limine motion.
Defendant recognizes that the trial court relied on the transcript at the ruling on the in limine motion. Citing Evidence Code section 403, subdivision (b), he argues that this was a mere motion to determine "whether the Illinois priors even qualified as a 'Strike/Serious Felony' antecedent" in which the People were not required to introduce any documentary evidence at the time. (See Evid. Code, § 403, subd. (b) [evidence requiring proof of preliminary fact may be conditionally admitted subject to subsequent proof of the necessary preliminary fact].) Since the People never introduced the plea transcript at the trial on the prior conviction's existence, defendant concludes, "the evidentiary basis on which the trial court made its alternative in limine legal ruling, based on the 'record of conviction,' is non-existent."
Defendant's argument fails because it is premised on a mistaken understanding of the procedure for determining strike and serious felony allegations. Strike and serious felony allegations consist of two issues: (1) whether the defendant was in fact convicted of the alleged crime; and (2) whether the offense is a serious felony and therefore a strike. Defendant has a right to a jury trial on the existence of the prior conviction, but whether that conviction is a strike is for the trial court to determine, not the jury. (People v. Kelii (1999) 21 Cal.4th 452, 454-459 (Kelii).)
The two issues are resolved through distinct inquiries. While determining if the defendant was convicted of a crime is a pure question of fact, "whether a prior conviction qualifies as a strike under the Three Strikes law is also the type of inquiry that judges traditionally perform as part of the sentencing function. Often this determination is purely legal, with no factual content whatever." (Kelii, supra, 21 Cal.4th at p. 456.) The few factual questions "are of limited scope," so that there are no witnesses at the hearing, and "[t]he trier of fact considers only court documents." (Id. at pp. 456-457.)
The transcript of the plea hearing was attached to the People's in limine motion. The parties treated the transcript as if it was presented in evidence for the hearing; the People argued factual basis of the plea was admissible hearsay as an adoptive admission, while defendant argued it was not admissible. The trial court agreed with the People's argument, and quoted from the plea transcript at length in its decision.
The People did not offer the plea transcript at the subsequent trial on the existence of the prior convictions because it was unnecessary. The indictment and record of conviction were sufficient to prove the only issue presented at that trial--defendant was convicted of the Illinois offenses in question. The plea transcript was duplicative and potentially prejudicial as to that issue, containing a detailed description of defendant's prior crimes.
Citing People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa), the Attorney General concedes the Illinois plea colloquy cannot be considered on appeal because it was not admitted as evidence at the trial on the existence of the Illinois conviction. We cannot accept the concession.
Ochoa simply states the general rule for reviewing the sufficiency of the evidence on appeal; it establishes no rule regarding when or how a trial court may determine whether a prior conviction is a serious felony and a strike. (Ochoa, supra, 6 Cal.4th at p. 1206.) The Attorney General's concession rests on the mistaken assumption that the trial on the existence of the Illinois conviction was also a trial on whether the conviction was a strike.
"It is well established that where the record shows that a document has been considered by the court and the parties as being in evidence, a reviewing court will not look for technical reasons to exclude [it] from consideration . . . ." (Cohon v. Dept. Alcoholic Bev. Control (1963) 218 Cal.App.2d 332, 335, fn. 10; accord Estate of Connolly (1975) 48 Cal.App.3d 129, 132, fn. 4; Reed v. Reed (1954) 128 Cal.App.2d 786, 790-792.) "[T]he fact that no formal offer in evidence was made will not exclude it from consideration as part of the record on appeal." (Reed, at p. 791; see also Miller v. Superior Court (2002) 101 Cal.App.4th 728, 742.)
As we have already discussed, the parties and the trial court treated the plea colloquy as evidence at the pretrial hearing on the Illinois prior. "We agree with the observation that, 'if an object looks like a duck, walks like a duck and quacks like a duck, it is likely to be a duck.' [Citation.]" (Phillippe v. Shapell Industries (1987) 43 Cal.3d 1247, 1256.) The plea colloquy was evidence which we may consider in reviewing the strike finding.
Whether the Illinois conviction was a serious felony and a strike was litigated by the parties and determined by the trial court at the hearing on the People's in limine motion. In determining whether the Illinois conviction is a strike and a serious felony, we review the trial court's ruling on the People's in limine motion. The plea transcript was presented at the hearing, and we may consider it if it was admissible.
Defendant argued at the hearing on the People's motion that the factual basis of the Illinois plea was inadmissible hearsay. We note that defendant did not raise any objection to the plea transcript based on a lack of foundation or authenticity which forfeits any such claims on appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 989; Evid. Code, § 353, subd. (a).)
Evidence Code section 1221 provides that "[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." In People v. Sohal (1997) 53 Cal.App.4th 911, this court held that when a defendant enters a plea of guilty following a recitation of "the factual basis for the plea as stated by the prosecutor with which defense counsel agree[s]," the defendant makes "an adoptive admission of the truth of the facts underlying the plea on the prior." (Id. at p. 916.) The trial court can rely on those facts to find the prior conviction was a strike. (Ibid.)
The same principles apply here. At the Illinois plea hearing, defense counsel stipulated that the factual basis of the plea would be the testimony at trial. Defendant did not object to the factual basis of his plea hearing, and his assent constitutes an adoptive admission of the hearsay statements therein.
Robbery is the taking by force or fear of personal property from the person or immediate presence of the one in possession with the specific intent to steal, i.e., permanently to deprive the victim of his property. (§ 211; (People v. Wader (1993) 5 Cal.4th 610, 645-646; People v. Dominguez (1995) 38 Cal.App.4th 410, 417.) The specific intent to steal need not be directly proved, but may be inferred from all the circumstances of the case. (People v. Lewis (2001) 25 Cal.4th 610, 643.)
Defendant's Illinois robbery conviction constituted robbery as defined in California. Defendant demanded the Similac, and when refused, came back armed and with friends, beat two people at the church, and left with the Similac. Defendant's return to the church to take the Similac he was initially refused is evidence of an intent to steal formed before the robbery. By using force to take the Similac and then leave the church without any pursuit, defendant completed the robbery. (See People v. Johnson (1992) 5 Cal.App.4th 552, 559 [robbery complete when defendant no longer in flight from the scene].)
Substantial evidence supports the trial court's finding that the conduct underlying defendant's Illinois offense constituted robbery, and therefore was a serious felony and a strike. Since the record of conviction shows how the prior offense was committed, we do not need to resolve the difficult question of whether the Illinois crime of robbery constitutes robbery in California under the least adjudicated means test. (See People v. Banks (1979) 75 Ill.2d 383, 389-392 [robbery is general intent crime]; People v. Jamison (2001) 197 Ill.2d 135, 161 [same]; People v. Jones (1992) 149 Ill.2d 288, 295-297 [theft, which requires specific intent to steal, is a lesser included offense of robbery].)
The Requirement of Live Witnesses
At the trial on the existence of the prior conviction, defendant raised a Confrontation Clause objection to the record of conviction and indictment as they were presented without live witnesses to attest to their authenticity. On appeal, he argues admitting theses documents without a live witness to certify them violates the rule of Crawford v. Washington (2004) 541 U.S. 36, 59 [158 L.Ed.2d 177] (Crawford), as explained in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314] (Melendez-Diaz). We disagree.
Crawford held that out-of-court testimonial statements are barred by the Sixth Amendment's confrontation clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 59 [158 L.Ed.2d at p. 197].) The Supreme Court did not define the term "testimonial," but gave examples--"prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68 [158 L.Ed.2d at p. 203].)
The Supreme Court held in Melendez-Diaz that a certificate of analysis, showing the nature and weight of a controlled substance recovered from the defendant, was indistinguishable from a sworn affidavit and fell within the "'core class of testimonial statements,'" and, thus, was subject to the confrontation clause requirements of Crawford. Melendez-Diaz, supra, 541 U.S. at p. ___ [174 L.Ed.2d at p. 319]; see id. at p. ___ [174 L.Ed.2d at p. 321].) Defendant asserts the certification of the records as authentic is indistinguishable from the lab reports in Melendez-Diaz. He argues the certification is a hearsay statement that the record was an authentic copy, and, since this statement was used for the purpose of incriminating defendant, it was testimonial under Crawford.
Defendant's argument is refuted by Melendez-Diaz, in which the Supreme Court stated: "Contrary to the dissent's suggestion [citation], we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." (Melendez-Diaz, supra, 541 U.S. at p. ___ [174 L.Ed.2d at p. 322, fn. 1], italics added.) The Supreme court also noted a narrow, historically recognized exception to its general rule: "[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].)
While the statement certifying a record may be intended to allow other evidence to be admitted against the defendant, that statement is not itself evidence of criminal conduct. For this reason, the federal circuit courts considering this issue consistently hold that authenticating records does not implicate Crawford. (See United States v. Yeley-Davis (10th Cir. 2011) 632 F.3d 673, 680; United States v. Ellis (7th Cir. 2006) 460 F.3d 920, 927; United States v. Morgan (5th Cir. 2007) 505 F.3d 332, 339; United States v. Weiland (9th Cir. 2005) 420 F.3d 1062, 1077.)
We agree. Certifying a copy of an official record is not testimonial. Defendant's Confrontation Clause claim is without merit.
In Apprendi, the United States Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) After the conclusion of briefing, the Ninth Circuit Court of Appeals published Wilson v. Knowles (9th Cir. 2011) 638 F.3d 1213 (Wilson). In Wilson the Ninth Circuit held that the Apprendi exception allowing a trial court to decide the fact of a prior conviction in determining the proper sentence did not apply where the trial court found disputed facts at issue in a seven-year-old conviction such as the extent of a victim's injuries or how an accident occurred. (Wilson, at pp. 5-6.)
Defendant moved for supplemental briefing to address the issue of whether Apprendi prevents a trial court from making factual findings regarding prior convictions. We deny the motion and deem the issue to have been raised by defendant.
Arguably Wilson can be distinguished from the matter now before us but we need not decide that because the California Supreme Court disagrees with the Ninth Circuit on this point. "The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] '[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.' [Citation.]" (People v. Black (2007) 41 Cal.4th 799, 818.) The California Supreme Court and numerous other jurisdictions interpret the recidivism "exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.]" (Id. at p. 819; see also People v. McGee (2006) 38 Cal.4th 682, 703-706 [citing cases].)
Whatever its application here, we need not follow the Ninth Circuit's decision in Wilson. (People v. Camacho (2000) 23 Cal.4th 824, 830, fn. 1.) We are bound to follow Black and McGee. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject this contention.
The judgment is affirmed.
RAYE , P. J.
HOCH , J.
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