John Trice, Judge Superior Court County of San Luis Obispo (Super. Ct. No. F449523)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
Harley Paul Finney apparently was not paying attention when, in 1999, a judge expressly warned him that he was a "two striker." This time, he was convicted by jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))*fn1 with findings that he personally used a deadly weapon and inflicted great bodily injury on the victim. (§§ 12022, subd. (b); 12022.7.) In a bifurcated trial, the trial court found that appellant had suffered two strike priors (§§ 667, subds. (d)-(e); 1170.12, subds. (b)-(c)) and a prior prison term (§ 667.5, subd (b)). Appellant was sentenced to state prison as a "three striker" to a term of 29 years to life. He appeals, contending that his two prior strike convictions should only count as one strike (see People v. Burgos (2004) 117 Cal.App.4th 1209). He also contends that the trial court erred in not dismissing one or both of the prior strikes (see People v. Superior Court (Romero)(1996) 13 Cal.4th 497). We will affirm the judgment.
Facts and Procedural History
On the evening of July 20, 2010, appellant, armed with a knife, stabbed Chad Robinson more than 10 times. Robinson almost died as a result of this attack. Appellant said he was "send[ing] a message" to Robinson's friends, Luke Ledger and Michael Downs (aka Shy Boy). Earlier that day, appellant's friend, Josh, fought Luke Ledger in Mission Plaza in San Luis Obispo. Appellant tried to join the fray but was stopped by Robinson's friend, Shy Boy, who choked appellant unconscious.
Robinson, identified appellant in a photo lineup. He also identified appellant as the stabber at the preliminary hearing but, fearing retaliation, recanted at trial.
Appellant presented an alibi defense. Stacy Schmidt, a former girlfriend, claimed that she spent the evening with appellant and Matthew Pillers. On cross-examination, Schmidt admitted that she was clocked in at work in Salinas at the time of the attack on Robinson.
The jury was unable to reach a unanimous verdict on the attempted murder charge but returned a guilty verdict for assault with a finding that appellant personally used a deadly weapon and inflicted great bodily injury on the victim.
At the trial on the prior strike allegations the People proved that appellant was "convicted" as a juvenile for mayhem and an assault committed on a 60 year old homeless man. Appellant beat the victim with a skateboard and, erroneously thinking that he had killed the victim, fled. He returned 30 minutes later and kicked the victim in the head three times. When the pleas were entered in 1999, appellant acknowledged that the "convictions" qualified as two strikes. The juvenile court committed appellant to the California Youth Authority and expressly warned appellant as follows: "I want you to understand today when you leave court, . . . that this will constitute two strikes."
Appellant contends that the trial court erred in denying his "Burgos motion" (People v. Burgos, supra, 117 Cal.App.4th 1209) to treat the strike allegations as a single strike because the strike priors arose from a single criminal act. In People v. Benson (1998) 18 Cal.4th 24, 36, our Supreme Court held that a serious felony conviction constitutes a "strike" even if the sentence is stayed pursuant to section 654. In a footnote, the court stated: "[W]e need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected - for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct - that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors." (Id., at p. 36, fn. 8.)
In Burgos, supra, 117 Cal.App.4th 1209, defendant was convicted of robbery and aggravated assault and sentenced as a Three Striker after he admitted suffering prior convictions for attempted carjacking and attempted robbery. (Id.,at p.1211.) Relying onBenson, theBurgos court concluded that the trial court erred in declining to strike one of the prior convictions. (Id., at p. 1214.) "[A]ppellant's two convictions, attempted carjacking and attempted robbery, were, in the language of Benson, 'so closely connected,' having arisen from the same single act, that failure to strike one of them must be deemed an abuse of discretion." (Id., at p. 1216.) Critical to the court's analysis was the carjacking statute (section 215, subdivision (c)) which "permits the prosecution to charge a defendant with both carjacking and robbery under section 211, but expressly states that 'no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211." (Ibid.)
Relying on Burgos, appellant argues that his 1999 "convictions" for mayhem and assault arose from the same criminal act and constitute a single strike. The trial court rejected the argument for good reason. Based on the 1999 police interview, appellant admitted beating the victim and leaving him for dead. He fled but returned 30 minutes later and kicked the victim in the head three times. Distinguishing Burgos, the trial court factually found that "the time difference there between the initial assault and the later assault is . . . a clear enough break and . . . two separate incidents . . . . I think it can clearly be viewed as two strikes under California's Three Strikes law."
We agree with the trial court's well-reasoned analysis. Burgos is factually distinguishable. Here the two attacks/crimes were separated in time and did not constitute a single act or even a continuous course of conduct. Sitting as trier of fact, the trial court factually found that the priors were "separate." It was not required to make a contrary finding based upon a perceived ambiguity in the accusatory pleading. ...