P. v. Bazley CA3 ( 2013 )

Filed 5/21/13 P. v. Bazley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C072667
Plaintiff and Respondent, (Super. Ct. No. 12F02678)
v.
MICHAEL BAZLEY,
Defendant and Appellant.
Between February 13, 2012, and February 22, 2012, defendant Michael Bazley
stole checks belonging to Kathleen Rosing and deposited them in his bank account. As a
result, SAFE Credit Union suffered a $400 loss and Golden 1 Credit Union incurred a
loss of $3,799.73.
Defendant was charged with second degree burglary (Pen. Code, § 459),1
possession of a completed check or other financial instrument with intent to utter or pass
it fraudulently (§ 475, subd. (c)), and identity theft (§ 530.5, subd. (a)) with an allegation
that he had a prior conviction for a serious felony under the "Three Strikes" law -- a 1967
1 Undesignated statutory references are to the Penal Code.
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Louisiana conviction for armed robbery. Pursuant to a negotiated plea, defendant pled no
contest to identity theft with a stipulated sentence of three years in state prison in
exchange for dismissal of the remaining charges and the strike allegation. The trial court
sentenced defendant to the stipulated three-year state prison term, imposed various fines
and fees, ordered defendant to pay $4,199.73 in victim restitution, and awarded 402 days‟
presentence credit (201 actual and 201 conduct).
Defendant appeals. His request for a certificate of probable cause was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal. 3d 436.) Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief asserting he should have been sentenced
pursuant to section 1170, subdivision (h), rather than state prison because he was not
represented by counsel in the Louisiana case and there was insufficient evidence to plead
and prove the prior conviction beyond a reasonable doubt.
Defendant‟s offense is punishable under section 1170, subdivision (h), unless
defendant has a prior conviction for a serious or violent felony. (§§ 1170, subd. (h)(3),
530.5, subd. (a).) A serious or violent felony used to disqualify a defendant from section
1170, subdivision (h), sentencing does not have to be pled or proven to a jury. (People v.
Griffis (2013) 212 Cal. App. 4th 956, 959.) However, there must still be substantial
evidence showing that the prior conviction was in fact a strike. (Ibid.)
Defendant‟s plea agreement included a three-year state prison term as a stipulated
sentence, and the People would not use the strike allegation other than to render
defendant eligible for state prison. “ „[A] challenge to a negotiated sentence imposed as
part of a plea bargain is properly viewed as a challenge to the validity of the plea itself‟
and thus requires a certificate of probable cause. [Citation.]” (People v. Shelton (2006)
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37 Cal. 4th 759, 766; § 1237.5.) Since defendant did not obtain a certificate of probable
cause, his contentions, which challenge a sentence that was part of the plea agreement,
are not cognizable on appeal.
Defendant‟s claims also fail on the merits. The record shows that defendant has a
1967 Louisiana conviction for armed robbery (La. Rev. Stat. Ann. § 14:64). He contends
this conviction is invalid because he was not provided counsel at the time of the prior
conviction. We reject this, as a defendant cannot attack the constitutional validity of a
prior conviction used in a current prosecution. (Garcia v. Superior Court (1997)
14 Cal. 4th 953, 964.) His claim that the evidence of the prior conviction is inadmissible
hearsay is also without merit, as the evidence of his prior is found in a rap sheet and the
probation report, which are admissible at sentencing. (Evid. Code, § 1280; People v.
Cain (2000) 82 Cal. App. 4th 81, 87-88.)
For a conviction in a foreign jurisdiction to qualify as a strike offense in
California, it must have involved conduct that would constitute a serious felony in
California. (People v. Avery (2002) 27 Cal. 4th 49, 53.) In order to qualify as a strike, if
we do not know the facts of the prior offense, then we “must presume the prior
conviction was for the least offense punishable under the foreign law. [Citations.]”
(People v. Jenkins (2006) 140 Cal. App. 4th 805, 810.) Robbery (§ 211), a serious felony
(§ 1192.7, subd. (c)(19)), is defined in California “as the taking of personal property of
some value, however slight, from a person or the person's immediate presence by means
of force or fear, with the intent to permanently deprive the person of the property.
[Citations.]” (People v. Marshall (1997) 15 Cal. 4th 1, 34.)
When defendant was convicted in Louisiana, armed robbery was “ „the theft of
anything of value from the person of another or which is in the immediate control of
another, by use of force or intimidation, while armed with a dangerous weapon.‟ ” (State
v. Welch (1967) 250 La. 719, 721, fn. 2 [198 So. 2d 902] [quoting La. Rev. Stat. Ann.
§ 14:64].) Armed robbery required theft at the time, and “an essential element of the
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crime of theft is the specific intent to permanently deprive the victim of the stolen
property. [Citation.] Since armed robbery is a species of theft, the state must show that
the defendant had the intent necessary for the offense of theft.” (State v. Bruins (La.
1981) 407 So. 2d 685, 687.) Since armed robbery in Louisiana at that time was
indistinguishable from robbery in California, defendant‟s prior conviction is a serious
felony.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
BLEASE , Acting P. J.
We concur:
NICHOLSON , J.
MAURO , J.
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