(Super. Ct. No. NCR79807)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Marty Dupree Hilliard guilty of transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a))*fn1 and resisting arrest (Pen. Code § 148, subd. (a)(1)). In bifurcated proceedings, the trial court found defendant had two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), and a prior controlled substance conviction within the meaning of section 11370.2. Defendant was sentenced to an aggregate term of 10 years, which included a consecutive three-year term for the prior controlled substance conviction.
With regard to the prior controlled substance conviction, which occurred in Oregon, defendant argues the trial court erroneously concluded that "delivery" under Oregon law equates with "transportation" under California law. Because California law does not expressly include "delivery," defendant argues that the consecutive three-year term should be stricken. We conclude that the record of the Oregon prior conviction presented by the prosecution at the bifurcated proceedings contains insufficient facts to support the trial court's finding that the prior controlled substance conviction qualified as an enhancement. Accordingly, we reverse the finding and remand for retrial on the enhancement allegation and resentencing.*fn2
Section 11370.2, subdivision (a), provides: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." Out-of-state prior convictions may qualify as enhancements. (§ 11370.2, subd. (f).)
Here, the information alleged, pursuant to section 11370.2, subdivision (a), that defendant was convicted on March 3, 2005, in Jackson County, Oregon, Superior Court case No. 040729AFE of violating Oregon Revised Statutes section 475.992.
"A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding and commitment to prison, including the abstract of judgment describing the prior offense. [Citations.] [¶] '[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction . . . .' [Citations.] . . . [¶] Thus, if the prosecutor presents, by such records, prima facie evidence of a prior conviction that satisfies the elements of the recidivist enhancement at issue, and if there is no contrary evidence, the fact finder, utilizing the official duty presumption, may determine that a qualifying conviction occurred. [Citations.] [¶] However, if the prior conviction was for an offense that can be committed in multiple ways, and the record of 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 statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden. [Citations.] [¶] 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. [Citations.]" (People v. Delgado (2008) 43 Cal.4th 1059, 1066-1067.)
To prove the prior Oregon conviction, the prosecution introduced into evidence the following documents: the indictment, the petition to enter a plea of guilty, and the judgment. The indictment alleged in count I that defendant violated Oregon Revised Statutes section "475.999, class A felony, crime category 8." Defendant was "accused by the Grand Jury of the County of Jackson by this indictment of the crime of [¶] delivery of a controlled substance committed as follows: [¶] The said defendant, on or about the 11th day of February, 2004, in the said County of Jackson and State of Oregon, then and there being, did unlawfully and knowingly deliver cocaine, a schedule II controlled substance, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon." The allegation that defendant committed the offense within 1,000 feet of a school was deleted by handwritten strike-through.*fn3 Defendant was also accused in the indictment of manufacture of cocaine within 1,000 feet of a school (count II) and being a felon in possession of a firearm (count III).
The petition to enter a plea of guilty signed by defendant on March 3, 2005, reflects that defendant pled guilty to "Count I (Delivery of a Controlled Substance)" and "Count III (Felon in Possession of a Firearm)," and that the factual basis for the plea was "as alleged in the Indictment."
The judgment of conviction reflects that defendant was convicted based on his guilty plea of delivery of a controlled substance (under Oregon Revised Statute 475.992A) and being a felon in possession of a firearm. It further reflects that count II was dismissed. The court granted probation for a term of two years "subject to 120 ...