People v. Chubbuck ( 2019 )

Filed 12/11/19 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071274
v. (Super.Ct.No. FVI18001366)
JHYY DEMOND CHUBBUCK, ORDER MODIFYING OPINION
AND DENYING PETITION FOR
Defendant and Appellant. REHEARING
[CHANGE IN JUDGMENT]
THE COURT:
The Petition for rehearing filed by appellant on November 27, 2019 is denied. The
opinion filed in this matter on November 12, 2019, is modified as follows:
1. On Page 11, in line 3 of the second full paragraph, change People v. Van Orden
(2017) 9 Cal.App.5th 1285-1286 to People v. Van Orden (2017) 9 Cal.App.5th 1277,
1285-1286.
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2. On Page 17, after the first full paragraph and before IV. DISPOSITION, add the
following Section D:
D. Defendant’s Prison Prior Enhancement Should Be Stricken
Following issuance of our original opinion in this appeal on November 27, 2019,
defendant petitioned for rehearing, claiming that his one-year sentencing enhancement
should be stricken in light of recent amendments to section 667.5, subdivision (b)
embodied in Senate Bill No. 136. The amendment becomes effective January 1, 2020,
and precludes the imposition of one-year sentence enhancements for a prior prison term
unless the prior offense was sexually violent in nature. (§ 667.5, subd. (b).) In their
answer to defendant’s petition, The People concede that the prior conviction underlying
defendant’s sentencing enhancement would not qualify for an enhancement under the
amended statute. The People further concede that it is highly unlikely the defendant’s
judgment will be final by the time the amended statute takes effect on January 1, 2020.
We agree that it is highly unlikely that defendant’s judgment will be final by
January 1, 2020, because he would have to exhaust all of his appeal rights by that date.
(See People v. Garcia (2018) 28 Cal.App.5th 961, 973.) As such, we remand the matter
to the trial court for resentencing in light of Senate Bill No. 136, after January 1, 2020.
3. On Page 17, under IV. DISPOSITION, strike the entire first sentence and
replace it with: The cause is remanded to the trial court with directions to resentence
defendant after January 1, 2020, in light of section 667.5, subdivision (b), as amended by
Senate Bill No. 136 effective January 1, 2020. The trial court is further directed to
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correctly reflect the defendant’s name as “Jhyy Demond Chubbuck” in any subsequent
abstract of judgment.
Except for these modifications, the opinion remains unchanged. The
modifications effect a change in the judgment.
CERTIFIED FOR PUBLICATION
FIELDS
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
3
Filed 11/12/19 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071274
v. (Super.Ct.No. FVI18001366)
JHYY DEMOND CHUBBUCK, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed with directions.
Richard Power, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Daniel J.
Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
1
I. INTRODUCTION
Defendant and appellant, Jhyy Demond Chubbuck,1 was convicted by a jury of
one count of unlawful taking or driving a vehicle. (Veh. Code, § 10851, subd. (a).) In a
bifurcated proceeding, the trial court found defendant had suffered a strike prior pursuant
to Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a)
through (d), as well as a prison prior pursuant to Penal Code section 667.5, subdivision
(b). Defendant was sentenced to three years, doubled for the strike prior, and an
additional one year for the prison prior, for a total of seven years in state prison.
On appeal, defendant contends: (1) his conviction must be overturned because the
motorized equipment he allegedly drove or took does not qualify as a “vehicle” under
Vehicle Code section 10851; (2) the jury’s verdict finding that he “took” or “drove” a
vehicle in violation of Vehicle Code section 10851 is not supported by substantial
evidence; and (3) the trial court’s finding that he suffered an offense qualifying as a strike
under Penal Code sections 1170.12 and 667, subdivisions (b) through (i) is not supported
by substantial evidence. We affirm the judgment.
1 At oral argument appellate counsel informed the court that defendant’s true
name is “Jhyy Demond Chubbuck,” as reflected in the opening brief and not “Jayy
Demond Chubbuck,” as reflected in the abstract of judgment. Therefore, we will direct
the trial court to correct the abstract.
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II. FACTS AND PROCEDURAL HISTORY
A. Facts and Charges
On May 20, 2018, police responded to a report of an unauthorized individual
driving within the storage yard of a business in Hesperia. When the police arrived at the
scene, they discovered defendant inside a motorized device used to move shipping
containers within the storage yard. Defendant was arrested and subsequently charged in
an amended information with one count of unlawful taking or driving of a vehicle in
violation of Vehicle Code section 10851. The amended information further alleged that
defendant had a previous conviction in the United States District Court in Tennessee
which qualified as a strike warranting a sentence enhancement under Penal Code sections
1170.12 and 667, subdivisions (b) through (i).
B. Prosecution Evidence
An employee testified that the storage yard of the business is a large lot used to
store horse feed. He was working in the early morning of May 20, 2018, as a security
guard stationed in the business’s office located at the main entrance to the storage yard.
At the time, all the entrances to the storage yard were locked and he was the only
individual working on the premises. At approximately 3:52 a.m., he heard a noise,
looked out the window and observed someone attempting to climb into one of the pieces
of motorized equipment parked in the storage yard. He described the equipment as a
“truck.” He heard the truck’s engine start and observed the truck drive around the yard
for approximately 10 to 15 minutes before coming to a stop. The employee called a
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coworker to report the incident. On cross-examination, the employee admitted his view
of the truck was obscured during part of the 10 or 15 minutes that he claimed to observe
it driving around the yard.
A manager for the business testified that the general hours employees work in the
business’s storage yard are between 8:00 a.m. and 4:30 p.m., with one guard stationed
overnight. In the early morning of May 20, 2018, an employee called him to report an
incident in the storage yard. The manager arrived at the storage yard at the same time as
police officers, opened the gate to the yard for the officers, and observed the officers
remove an individual from the cabin of a motorized piece of equipment in the yard. He
described the equipment as a “yard goat,” explained that it was a utility device used to
transport shipping containers, and described it as a type of vehicle which could be used to
haul shipping containers on a highway. However, this specific device was only used to
move shipping containers within the business’s storage yard and the business did not
have a license for its use on public streets. Only the manager and one other employee
had permission to drive the equipment and the manager did not give anyone else
permission to drive the equipment on the date of the incident.
A deputy sheriff for the San Bernardino County Sheriff’s Department testified that
she was working on patrol on May 20, 2018, when she was called to respond to a report
of an unauthorized individual driving a vehicle inside a storage lot. When the deputy and
her partner arrived at the scene, the manager of the business unlocked the gates to let
them in, and they made contact with a security guard who directed them to a white
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vehicle parked in the storage yard. The deputy and her partner approached the vehicle,
opened the driver’s side door to the vehicle, discovered defendant inside, and detained
defendant. She did not observe anyone exit the vehicle as they approached.
C. Defense Evidence
Defendant testified that he was in Hesperia on May 19, 2018, visiting his parents.
He had walked to a liquor store that evening and purchased vodka and Gatorade. He met
two females outside the liquor store and they began drinking, eventually making their
way to a nearby club or bar. He left the bar after he ran out of money, but became
disoriented while attempting to return to his parent’s home. Eventually, defendant made
his way through an opening in a fence and climbed into the cabin of a piece of equipment
parked on the other side of the fence. Defendant described the equipment as a “semi,” an
“18 wheeler,” and a type of vehicle used to haul trailers on roads. Defendant testified
that he went to sleep once he entered the vehicle, but at some point woke up and started
the ignition. However, defendant denied putting the vehicle into gear and denied driving
the vehicle for 10 or 15 minutes around the lot.
D. Bifurcated Proceedings and Sentencing
The allegations of defendant’s prior strike offense and prior prison sentence were
tried in a bifurcated proceeding. The People alleged that defendant’s prior conviction in
the United States District Court in Tennessee for a violation of title 18 United States
Code section 1951, accompanied by a firearm enhancement pursuant to title 18 United
States Code section 924(c), qualified as a strike warranting a sentence enhancement
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under Penal Code sections 1170.12 and 667, subdivisions (b) through (i). The People
presented a packet of documents marked as exhibit 5 and called a special assistant to the
United States Attorney to testify and explain various aspects of the documents. Exhibit 5
was described as “a certified document that contains multiple different documents,”
including a complaint, plea agreement, court minutes, and records from the United States
penitentiary in Victorville. At the conclusion of the special assistant’s testimony, exhibit
5 was admitted into evidence without objection.
Defendant did not contest the fact of his conviction, but argued that the conviction
did not qualify as a strike under Penal Code section 667, subdivisions (b) through (i).
The trial court found that the prior conviction qualified as a strike. Defendant was
sentenced to three years, doubled for a strike prior, and an additional one year for the
prison prior, for a total of seven years in state prison.
III. DISCUSSION
A. The Device at Issue Here Qualified as a “Vehicle” Under Vehicle Code Section
108512
Defendant argues that his conviction under section 10851 cannot stand because the
motorized equipment which he was accused of driving does not qualify as a “vehicle” for
purposes of section 10851. We disagree.
2 Undesignated statutory references are to the Vehicle Code.
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1. Standard of Review and Applicable Legal Principles
“[T]he definition of ‘vehicle’ set forth in Vehicle Code section 670 governs the
construction of Vehicle Code section 10851 and the meaning of ‘vehicle.’” (People v.
Philpot (2004) 122 Cal. App. 4th 893, 901.) Section 670 defines a vehicle as “a device by
which any person or property may be propelled, moved, or drawn upon a highway,
excepting a device moved exclusively by human power or used exclusively upon
stationary rails or tracks.”
“The proper interpretation of a statute is a question of law for our independent
determination. [Citations.] Likewise, the application of a statute to undisputed facts is a
question of law, subject to our de novo, or independent, review on appeal.” (People v.
Salcido (2008) 166 Cal. App. 4th 1303, 1311.) “In interpreting the statutory language at
issue, ‘[w]e begin with the fundamental rule that our primary task is to determine the
lawmakers’ intent.’ . . . [T]he key to statutory interpretation is applying the rules of
statutory construction in their proper sequence.” (MacIsaac v. Waste Management
Collection & Recycling, Inc. (2005) 134 Cal. App. 4th 1076, 1082.) We look first to the
plain meaning of the words used in the statute; then to secondary rules of construction
and legislative history; and finally to considerations regarding the impact of any practical
application of a proposed interpretation. (Id. at pp. 1083-1084.)
2. Analysis
Defendant here argues that the type of motorized equipment involved in this case
does not qualify as a “vehicle” for purposes of section 10851 because it was specially
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designed for the purpose of moving storage bins, traveled at low speeds, and was not
normally used for driving upon a highway. Both the plain meaning of the words used in
section 670 and the canons of statutory construction compel us to reject this argument.
Section 670 defines a vehicle as a device by which a person or property “may” be
propelled, moved or drawn upon a highway. In its plain meaning, the term “may”
references permissive conduct, or conduct which is optionally exercised. In other words,
whether a device is a “vehicle” turns on whether the user has the option to use the device
to propel, move, or draw persons or property on a highway, referring to the device’s
potential physical capability instead of its intended or actual use in a specific context.
Here, it was undisputed that the device at issue had the potential to be used to haul
storage containers on a highway.3 Nothing in the record suggests that this device was
incapable of being driven on a highway—whether lawfully or unlawfully—if a person
chose to do so. Thus, the evidence established that the device is one which “may” be
used to move property on a highway, rendering it a “vehicle” under the plain meaning of
the words in section 670.
Even if we were to assume the plain meaning of the words used in section 670 left
some degree of ambiguity, secondary considerations compel the same conclusion. While
the legislative history of section 670 is sparse,4 two established canons of construction
3 Defendant’s own description of the device stated it was “a regular sized [tractor]
that hooks up to a trailer that combines to make an 18 wheeler like any other one that you
would see on the street. . . . [I]t was no different from any other tractor.”
4 As noted in People v. Philpot, supra, 122 Cal.App.4th at page 900.
8
inform our interpretation. First, it is a canon of statutory construction “that where
exceptions to a general rule are specified by statute, other exceptions are not to be
implied or presumed in the absence of a clear legislative intent to the contrary.” (People
v. Guillen (2013) 212 Cal. App. 4th 992, 996.) Here, section 670 sets forth two explicit
exceptions to the definition of a vehicle—devices moved exclusively by human power
and devices used exclusively on rails or tracks. The inclusion of two statutorily
enumerated exceptions strongly suggests that the Legislature did not intend to recognize
other exceptions such as the ones urged by defendant here.
Second, “[w]hen the same word appears in different places within a statutory
scheme, courts generally presume the Legislature intended the word to have the same
meaning each time it is used.” (People v. Gray (2014) 58 Cal. 4th 901, 906.) We note the
term “vehicle” is incorporated into the statutory definitions for a wide range of devices
described in the Vehicle Code. These include devices designed for enterprise-specific
purposes (§§ 322 [“Farm labor vehicle”], 410 [“Motor truck”], 385.3 [“Logging
vehicle”], 565 [“Special construction equipment”]); devices that travel at low speeds
(§§ 345 [“Golf cart”], 385.5 [“Low-speed vehicle”]); and devices that are capable of, but
not specifically intended for use on a highway (§§ 111 [“All-terrain vehicle”], 500
[“Recreational off-highway vehicle”], 531 [“Utility-terrain vehicle”], 557
[“Snowmobile”]). Given such, it seems clear the Legislature did not intend to exclude
devices used for an enterprise-specific purpose, devices capable of only low-speed
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travel,5 or devices which are designed primarily for use off public highways from the
definition of “vehicle” and defendant’s reliance on these factors is not persuasive.
B. Substantial Evidence Supports Both Theories of Liability Under Section 10851
Defendant also contends there was insufficient evidence to support the conviction
for a violation of section 10851. Specifically, defendant argues that the evidence does
not support either a “taking” or a “driving” theory of liability under that statute. We
disagree.
1. Standard of Review and Applicable Legal Principles
“[S]ection 10851[, subdivision] (a) ‘proscribes a wide range of conduct.’
[Citation.] A person can violate section 10851[, subdivision] (a) ‘either by taking a
vehicle with the intent to steal it or by driving it with the intent only to temporarily
deprive its owner of possession (i.e., joyriding).’” (People v. Garza (2005) 35 Cal. 4th
866, 876.)
“‘To assess the evidence’s sufficiency, we review the whole record to determine
whether any rational trier of fact could have found the essential elements of the crime . . .
beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to
support the verdict—i.e., evidence that is reasonable, credible, and of solid value. . . .
5 We also note that defendant’s extensive argument in his reply brief focusing on
the inability of the device to travel at “highway speeds” is misplaced. The Vehicle Code
defines “highway” as any “way or place of whatever nature, publicly maintained and
open to the use of the public for purposes of vehicular travel,” including streets. (§ 360.)
Defendant’s apparent understanding of the term “highway” to refer to roads in which
vehicles travel above certain speeds is not supported by the statutory language and his
arguments premised on this erroneous foundational assumption are unpersuasive.
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“We resolve neither credibility issues nor evidentiary conflicts. . . .” A reversal for
insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever
is there sufficient substantial evidence to support’” the jury’s verdict.’” (People v.
Penunuri (2018) 5 Cal.5th 126, 142.)
2. Substantial Evidence Supports a Conviction Under the “Drives” Theory
Defendant argues that the unlawful driving aspect of section 10851 was intended
to apply to activity formerly known as joyriding, which “does not logically apply when
the vehicle involved is in an enclosed area on private property from which there is no
way to drive the vehicle away from the owner’s possession and control.”
It is true that the unlawful driving provisions of section 10851 were intended to
prohibit the offense formerly known as “joyriding.” (People v. Garza, supra, 35 Cal.4th
at p. 876; People v. Van Orden (2017) 9 Cal.App.5th 1285-1286.) However, under the
former statutory scheme, joyriding was defined simply as the unauthorized temporary use
or operation of a vehicle. (People v. Howard (1997) 57 Cal. App. 4th 323, 327; see also
People v. Ivans (1992) 2 Cal. App. 4th 1654, 1665.) Defendant has not cited any
authority, and we have found none, which recognize exceptions where the vehicle is
operated only in a confined area, only for a short amount of time, or is quickly returned.
Nor do we agree that such a limitation should be read into the statute. The unauthorized
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use of the vehicle risks damage to the vehicle and impairment of its lawful owner’s right
to possession irrespective of the length of time or location in which it is operated.6
Here, defendant admitted that he started the ignition to the vehicle. While
defendant denied putting the vehicle into gear, an employee observed the vehicle being
driven around the storage lot for 10 to 15 minutes and defendant was discovered alone
inside the vehicle shortly thereafter. Since unlawful driving involves only the
unauthorized use or operation of the vehicle, this was sufficient evidence to support the
conviction under an unlawful driving theory.
3. Substantial Evidence Supports a Conviction Under the “Takes” Theory
Defendant also argues that the evidence is insufficient to support his conviction
under a theory of unlawful taking under section 10851 because the evidence establishes
the vehicle never left the business premises and was ultimately discovered in the same
general area in which it was originally parked. This argument is misplaced.
The unlawful taking provisions of section 10851 are considered a form of theft.
(People v. Van Orden, supra, 9 Cal.App.5th at pp. 1285-1286.) While “theft requires the
specific intent to permanently deprive the owner of its property. . . . ‘the property need
not . . . be retained by the perpetrator.’ [Citation.] ‘Asportation of the property with the
6 For example, where an individual engages in the unauthorized use of a vehicle
within a secured parking structure and unintentionally drives the vehicle into a wall, it
would seem anomalous to conclude that a charge of unlawful driving would not apply.
Yet under defendant’s theory, the fact that the vehicle was driven for only a short time
and never left the secured premises would exempt such acts from the statutory
prohibition.
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intention to appropriate it is sufficient . . . even though the property may subsequently be
returned to the owner. . . . The fact that a thief is prevented by an officer from getting
away with the property, or that he may change his mind and return the property to escape
prosecution for the crime, does not relieve him from the consequences of the theft. . . .’”
(People v. Shannon (1998) 66 Cal. App. 4th 649, 656.) Thus, the fact that the vehicle here
never left the business premises of its owner and was returned to roughly the same
location where it was originally parked is of no consequence. Instead, the relevant
inquiry is whether there was sufficient evidence from which the jury could infer
defendant’s specific intent to permanently deprive the owner of the vehicle, regardless of
whether defendant was ultimately successful in doing so.
Here, defendant testified that he had become disoriented after a night of drinking,
had been trying to find his way home, and had been walking for hours in cold and windy
conditions prior to climbing into the vehicle at issue. The employee on duty testified that
all the gates to the storage yard were locked at the time he observed the vehicle being
driven around within the lot. Defendant was discovered alone in the vehicle even after it
had come to a stop, but denied ever driving the vehicle in circles as described by the
employee. Given this evidence, a reasonable jury could infer that defendant intended to
use the vehicle to drive home, but was unable to do so given the fact that all the gates to
the storage yard were secured and locked.
Moreover, the jury could infer the specific intent necessary based upon the
defendant’s continued denial that he ever drove the vehicle. “‘Where recently stolen
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property is found in the conscious possession of a defendant who, upon being questioned
by the police, gives a false explanation regarding his possession or remains silent under
circumstances indicating consciousness of guilt, an inference of guilt is permissible. . . .
[P]ossession of the recently taken vehicle by the defendant with slight corroboration
through statements or conduct tending to show guilt is sufficient to sustain a conviction
of Vehicle Code 10851.’” (People v. Green (1995) 34 Cal. App. 4th 165, 180-181.) Thus,
the jury was entitled to infer guilty intent from defendant’s continued denial of driving
the vehicle even after being found alone within the vehicle moments after it was observed
being driven around the storage yard. This was sufficient evidence to support a
conviction under an unlawful taking theory, since the jury was entitled to infer the
defendant’s motives based upon the totality of the evidence presented.7
4. The Precise Theory Relied Upon by the Jury Is Irrelevant
Defendant also argues that the record does not disclose which theory under section
10851 was used by the jury, requiring reversal if either theory is defective. However,
“[i]f each juror concludes, based on legally applicable theories supported by substantial
evidence, that the defendant is guilty of the charged offense, the defendant is properly
7 Additionally, we note that under Penal Code section 490.2, the jury was also required to
find that the value of the vehicle exceeded $950 in order for defendant to be convicted of
a felony under Vehicle Code section 10851. (People v. Lara (2019) 6 Cal.5th 1128,
1133.) While the record does not disclose that the jury was ever instructed to make such
a finding, defendant forfeited this issue by failing to raise this argument on appeal.
Further, the record indicates the People presented uncontradicted evidence that the value
of the vehicle here was $21,500. Thus, even in the absence of forfeiture, we would find
that any error in the failure to instruct the jury on this issue was not prejudicial.
14
found guilty even if the jurors disagree about the particular theories or facts.” (People v.
Davis (1992) 8 Cal. App. 4th 28, 34.) Since we find that substantial evidence supports a
conviction under section 10851 under both its unlawful driving and unlawful taking
provisions, we need not address defendant’s argument in this regard.
C. Defendant Has Forfeited His Challenge to the Finding of a Strike Offense
Defendant also contends substantial evidence does not support the trial court’s
finding he suffered an offense qualifying as a strike under Penal Code sections 1170.12
and 667, subdivisions (b) through (i). We deem this issue forfeited for failure to provide
an adequate record.
“‘Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct . . . .’ ‘“We must indulge in every presumption
to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate
error it will not be presumed.”’ . . . [T]he defendant further bears the burden to provide a
record on appeal which affirmatively shows that there was error below, and any
uncertainty in the record must be resolved against the defendant.” (People v. Sullivan
(2007) 151 Cal. App. 4th 524, 549.) Where an appellant fails to supply a record adequate
for review, his claim must fail. (People v. Whalen (2013) 56 Cal. 4th 1, 85, disapproved
on other grounds in People v. Romero and Self (2015) 62 Cal. 4th 1, 44, fn. 17.)
“‘In order for a prior conviction from another jurisdiction to qualify as a strike
under the Three Strikes law, it must involve the same conduct as would qualify as a strike
in California.’” (People v. Woodell (1998) 17 Cal. 4th 448, 453.) “The People must
15
prove all elements of an alleged sentence enhancement beyond a reasonable doubt.”
(People v. Miles (2008) 43 Cal. 4th 1074, 1082.) However, “‘the trier of fact must be
permitted to go beyond the least adjudicated elements of the offense and to consider, if
not precluded by the rules of evidence or other statutory limitation, evidence found within
the entire record of the foreign conviction.’” (People v. Woodell, supra, at p. 453; People
v. Roberts (2011) 195 Cal. App. 4th 1106, 1116-1117.) Only where the record of
conviction does not disclose facts relevant to the underlying offense does the court
presume that the prior conviction was for the least offense punishable under the foreign
law. (People v. Roberts, supra, at p. 1117; People v. Miles, supra, at p. 1083; People v.
Delgado (2008) 43 Cal. 4th 1059, 1067.)
Here, it was undisputed that defendant suffered a prior conviction under title 18
United States Code section1951, accompanied by a firearm enhancement pursuant to
title 18 United States Code section 924(c). Defendant acknowledges that this prior
conviction would qualify as a strike if the underlying facts indicated the conviction
stemmed from a robbery offense under title 18 United States Code section 1951 or
personal use of a firearm under title 18 United States Code section 924, but argues that
the evidence does not conclusively support either finding. The record before us is
inadequate to review the merits of this contention.
At the bifurcated hearing, the People presented a packet of certified documents
related to defendant’s prior conviction, which were marked as exhibit 5 and admitted into
evidence. Exhibit 5 was described to include multiple documents, including the
16
pleadings, plea agreement, minute orders, and prison records related to defendant’s prior
conviction. The trial court was entitled to review each of these documents to determine if
they disclosed the factual basis for defendant’s conviction sufficient to conclude that the
conviction qualified as a strike. However, defendant did not make any effort to have
exhibit 5 transmitted to this court for review.8 We cannot review the trial court’s findings
of fact for substantial evidence where only a portion of the evidence has been placed
before us.
While it is true that courts must presume a foreign conviction was for the least
punishable offense, that presumption applies where the underlying facts supporting the
conviction cannot be ascertained from the record. No such presumption arises where the
facts cannot be ascertained because the defendant, by his own omission, simply neglects
to provide portions of the record for review. It was defendant’s burden to affirmatively
show error and to provide us with an adequate record to review any issues raised on
appeal. Absent an adequate record, we presume the trial court’s judgment was correctly
decided based upon the evidence before it and we deem the issue forfeited.
IV. DISPOSITION
The cause is remanded to the trial court with directions to correct the abstract of
judgment to reflect defendant’s name as “Jhyy Demond Chubbuck” and to forward a
8 We note that even after the record was prepared, defendant filed a motion to
augment the record to include exhibit 2, but took no effort to request that exhibit 5 be
included.
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copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
CERTIFIED FOR PUBLICATION
FIELDS
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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