Filed 1/9/15 P. v. Amaya CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059609
v. (Super.Ct.No. RIF1201528)
ARMANDO RUBEN AMAYA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jeffrey J. Prevost, Judge.
Affirmed with directions.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and
Respondent.
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Defendant Armando Ruben Amaya is serving 26 years to life as a third-striker
after a jury convicted him of robbery, burglary and dissuading a witness. Defendant
argues the prosecution presented insufficient evidence to prove that one of his prior
convictions qualified as a strike. He also contends the trial court failed to either strike or
impose the sentence for an arming enhancement attached to the robbery conviction, and
so the matter should be remanded. We conclude that substantial evidence supports the
challenged strike prior, but remand to the trial court so it can either strike or impose the
sentence for the arming enhancement.
FACTS AND PROCEDURE
On November 20, 2011, defendant and his brother robbed a convenience store at
gunpoint (defendant’s brother held the gun), took the clerk’s wallet and cell phone, and
emphasized that they now knew where the clerked lived.
On April 26, 2013, the jury convicted defendant of all charges—robbery (Pen.
Code, § 211),1 burglary (§ 459) and dissuading a witness (§ 136.1, subd. (b)(1)). The
jury also found true the allegation as to the robbery that defendant participated as a
principal knowing that another principal was armed with a firearm (§ 12022, subd. (d)).
On July 22, 2013, after a court trial on defendant’s prior convictions, the court
found true that defendant had a prison term prior (§ 667.5, subd. (b)) and two strike priors
(§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). The court then sentenced
defendant to a total of 26 years to life in prison as follows: 25 years to life for the
1 All section references are to the Penal Code unless otherwise indicated.
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robbery, 25 years to life for the burglary, stayed pursuant to section 654, 25 years to life
for dissuading a witness, to be served concurrently, plus one consecutive year for the
prison prior. The court did not mention the arming allegation.
This appeal followed.
DISCUSSION
1. Sufficiency of the Evidence to Prove Strike Prior
Defendant argues that the record was insufficient to establish that his 2001
conviction from San Bernardino County, for violation of section 245, subdivision (a)(1),
was a serious or violent felony conviction. The text of section 245, subdivision (a)(1), in
2001 was as follows: “(a) (1) Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a firearm or by any means of force
likely to produce great bodily injury shall be punished by imprisonment in the state
prison for two, three, or four years, or in a county jail for not exceeding one year, or by a
fine not exceeding ten thousand dollars ($ 10,000), or by both the fine and
imprisonment.”
Assault with personal use of a deadly weapon is a serious felony; assault by means
of force likely to cause great bodily injury is not. (People v. Delgado (2008) 43 Cal.4th
1059, 1063, 1065.) Consequently, a record which merely shows that the defendant was
convicted of violating section 245, subdivision (a)(1), without evidence that the
conviction involved personal use of a deadly weapon, is insufficient to prove a prior
serious felony allegation. (Delgado, at p. 1066.)
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“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.”
(Delgado, supra, 43 Cal.4th at p. 1066). From these certified documents, the trial court
can draw reasonable inferences in deciding whether the defendant suffered the prior.
(Id. at p. 1066.) “[I]f 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.” (Id. at p. 1066.)
When a defendant challenges the sufficiency of documentary exhibits at a
bifurcated trial on strike priors, a reviewing court’s role is limited to deciding whether,
when viewed in the light most favorable to the judgment, the documents disclose
substantial evidence, e.g., evidence which is reasonable, credible, and of solid value, such
that a reasonable trier of fact could find the prior convictions true beyond a reasonable
doubt. (Delgado, supra, 43 Cal.4th at p. 1067; People v. Garrett (2001) 92 Cal.App.4th
1417, 1433.) A reviewing court should not reweigh conflicts in the evidence but may
consider reasonable inferences that can be drawn from the record. (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206.)
Here, the trial court had available to it the following evidence when it determined
the 2001 conviction was a serious felony. The evidence is reviewed in chronological
order of its creation.
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First, the complaint filed November 13, 2001. In it, the People describe count 1 as
follows: “On or about October 16, 2001, in the above named judicial district, the crime of
ASSAULT WITH DEADLY WEAPON, in violation of PENAL CODE SECTION
245(A)(1), a felony, was committed by Armando Ruben Amaya, who did willfully and
unlawfully commit an assault upon Jose Luis Ventura with a deadly weapon, to wit,
Shotgun.” The People allege the identical crime committed against two other victims in
counts 2 and 3. Further, the complaint contains a notice in count one that “The above
offense is a serious felony within the meaning of Penal Code section 1192.7(c).” This
clearly indicates the People charged defendant with assault with a deadly weapon, which
is a strike offense. As the People point out, the record contains no evidence, at all, that
the charge was reduced to assault other than with a deadly weapon.
Second, the plea form. Filed on February 4, 2002, the hand-written notation states
that defendant pled to “245(a) PC (assault w/deadly weapon.)” This clearly indicates
defendant pled guilty to assault with a deadly weapon, which is a strike offense.
Third, the abstract of judgment, dated March 4, 2002, shows defendant was
convicted of “PC 245(A)(1) ASSAULT WITH DEA.” This appears to us as well to
indicate assault with a deadly weapon, which is a strike offense, rather than the non-strike
assault by any means likely to produce great bodily injury. Defendant argues that, as
with the case print described below, this could have been an attempt by the clerk to notate
the conviction with a general description of the statute, without specifying whether it was
for deadly weapon use or for likely to cause great bodily injury. We do not see that this
is a reasonable interpretation of the notation, because it contains NO elements of section
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245, subdivision (a)(1), other than assault with a deadly weapon. In any case, even if we
were to accept defendant’s argument on this point, as with the case print described below,
this would render the abstract of judgment simply unhelpful as to the issue of whether the
2001 prior was a serious felony, rather than indicating the felony was not serious or
making the record as a whole anything less than clear on that point.
Fourth, the case print made on September 21, 2012, describes the offense to which
defendant pled guilty as “245(A)(1) PC ASSAULT WITH DEADLY WEAPON NOT
FIREARM OR FORCE: GBI LIKELY”. This seems to us like a generic description of
section 245, subdivision (a)(1), rather than evidence either way as to whether the
conviction was for assault with a deadly weapon, a serious felony. In addition, the case
print also lists the two dismissed counts, counts 2 and 3, in the same manner – “245(A)(1)
PC ASSAULT WITH DEADLY WEAPON NOT FIREARM OR FORCE: GBI
LIKELY,” despite the fact that they were, also, clearly defined as assault with a deadly
weapon in the complaint. At most, we conclude that the case print is not helpful to
resolve this issue.
To conclude, the complaint, the plea form and the abstract of judgment each
clearly indicate that defendant pled guilty to assault with a deadly weapon, which is a
serious felony. The case print is not useful to the determination in either direction. These
documents taken as a whole disclose substantial evidence to support the trial court’s
finding beyond a reasonable doubt that the 2001 conviction was a serious felony for
purposes of the Three Strikes law.
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2. Remand for Pronouncement of Judgment on the Arming Enhancement
Defendant argues, the People concede, and this court agrees that the trial court
erred when it failed to pronounce judgment on the arming enhancement under section
12022, subdivision (d), as to the robbery count. Although the abstract of judgment and
minute order each reflect a one-year consecutive term, the trial court did not orally
pronounce judgment on the arming enhancement at the sentencing hearing. The trial
court is required to either impose or strike the allegation (§ 12022, subds. (d) & (f)).
Given the court’s omission, the sentence on the arming enhancement is unauthorized and
subject to correction for the first time on appeal. (People v. Bradley (1998) 64
Cal.App.4th 386, 391.) Remand for correction is the appropriate remedy. (People v.
Neeley (2009) 176 Cal.App.4th 787, 799.)
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DISPOSITION
The matter is remanded to the trial court with directions to either impose or strike
the arming enhancement under section 12022, subdivision (d). In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
GAUT
J.*
We concur:
RAMIREZ
P. J.
KING
J.
* Retired Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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People v. Amaya CA4/2
Combined Opinion