People v. Soto CA2/4 ( 2015 )

Filed 4/10/15 P. v. Soto CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B250369
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA085316)
v.
ANTONIO SOTO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Stanley
Blumenfeld, Judge. Affirmed in part, reversed in part and remanded with instructions.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
Defendant Antonio Soto appeals from the judgment entered following his
conviction by jury of robbery, attempted robbery, commercial burglary, and possession of
a firearm as a felon, with special allegations regarding use of a gun and prior felony
convictions. Soto was sentenced to a total term of 100 years to life and was ordered to
pay various fines and fees. Soto contends his trial counsel rendered ineffective assistance
by failing to investigate the viability of a voluntary intoxication defense and that the trial
court erred in denying his motion for a new trial on that basis. He also claims there was
insufficient evidence to support the findings on his prior convictions and that the court
gave an erroneous jury instruction regarding the burden of proof. We reverse the verdict
with respect to one of Soto’s prior convictions and remand to the trial court for further
proceedings on that issue. We further order the abstract of judgment to be modified to
reflect an additional $120 in court security fees and $90 in criminal conviction
assessments. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORY
A. Procedural Background
An information filed June 20, 2012 charged Soto with the following seven counts:
two counts of second degree commercial burglary (Pen. Code, § 459; counts 1 and 3),1
one count of attempted second degree robbery (§ 211; count 2), two counts of second
degree robbery (§ 211; counts 5 and 6), and two counts of possession of a firearm by a
felon (§ 12021, subd. (a)(1); counts 7 and 8).2 The information further contained special
allegations as to counts one and three that Soto personally used a firearm (§ 12022.5,
subd. (a)), and as to counts two, five, and six that he personally used a firearm in the
commission or attempted commission of a robbery (§ 12022.53, subd. (b)). It was further
1
All further statutory references herein are to the Penal Code unless otherwise
indicated.
2
The information does not allege a Count 4.
2
alleged that Soto had incurred five prior serious or violent felony convictions as to counts
two, five and six (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and four prior serious
felony convictions as to counts two and six (§ 667, subd. (a)(1).)
Soto pleaded not guilty and denied the special allegations. The court bifurcated
the trial on counts seven and eight and related prior conviction allegations. On April 2,
2013, following the first phase of the trial, the jury found Soto not guilty on counts three
and five. The jury found Soto guilty on counts one, two, and six and further found the
firearm enhancements true. Following the second phase of the trial, the jury found Soto
guilty on counts seven and eight and found the prior conviction allegations to be true.
The trial court also found the five prior convictions were strikes.
On April 3, 2013, following the verdicts but prior to sentencing, the court granted
Soto’s motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806.
Soto, in pro. per., filed a motion for a new trial on June 13, 2013, which the court denied.
The court sentenced Soto to a total term of 100 years to life. On count two, the
court imposed a term of 25 years to life pursuant to the Three Strikes Law (§§ 1170.12,
subds. (a)-(d), 667, subds. (b)-(i)), plus an additional 10 years for the firearm
enhancement (§ 12022.53, subd. (b)), and three five-year terms for the serious felony
prior convictions (§ 667, subd. (a)(1).) The court imposed the same punishment on count
six, to be served consecutively to the sentence for count two. The court imposed but
stayed punishment on the remaining counts and enhancements. The trial court further
ordered Soto to pay two $40 court security fees (§ 1465.8, subd. (a)(1)), two $30 criminal
conviction assessments (Gov. Code, § 70373), a $2,000 restitution fine (§ 1202.4, subd.
(b)), and imposed and stayed a $2,000 parole revocation fine (§ 1202.45). Soto was
awarded 603 days of presentence custody credit. Soto timely appealed.
3
B. Prosecution Case
1. The 99 Cent Store (Counts 1 and 2)3
On October 23, 2011, at about 4:20 p.m., Soto entered a National Best Discount
store (also referred to as a “99 Cents” store) located in San Gabriel, California. He
approached the cashier, Chui Kwan, said he was looking for buttons for his jeans, and
asked her to get them for him. Ms. Kwan retrieved the buttons and then returned to the
cash register. Soto came up to the register and pulled a gun out of a bag. Ms. Kwan
testified at trial that the gun appeared to be real. Soto pointed the gun at her, tapped the
cash register with his hand, and asked Ms. Kwan to open it and place all the money into
his bag. Before Ms. Kwan could open the register, Soto reached over, opened it, and
raked his hand through the drawer. He then said “I asked you to open up the cash
register. Why didn’t you do it?” A customer, Maria Rosa Carrillo, approached the
counter, but then ran out the back door. Soto then left the store and Ms. Kwan called the
police.
Ms. Carrillo, the customer, testified that she saw Soto bending over the counter
with a gun in his hand. The gun appeared to her to be real. She heard Soto ask Ms.
Kwan to open the cash register several times. Ms. Carrillo then exited the store through a
rear door and called the police.
On December 20, 2011, Ms. Carrillo identified Soto from a photographic lineup.
Ms. Kwan and Ms. Carrillo both identified Soto at trial. Two video clips from the store’s
security cameras were played for the jury during the trial, depicting the events of the
crime.
2. Mission Car Wash/Chevron Gas Station (Count 6)
On November 13, 2011, Yader Hernandez was working as a cashier at the Mission
Carwash/Chevron Gas Station in San Gabriel, California. Around 10:30 p.m., as
Hernandez was getting ready to close, Soto entered and approached him. Soto pulled a
3
We omit facts related to counts three and five, the alleged robbery of a Route 66
gas station, as Soto was found not guilty of those charges.
4
gun out of a bag, pointed it at Hernandez, and said “Give me the money.” Hernandez
testified he believed it was a real gun. He put an envelope containing cash and receipts
into Soto’s bag. Hernandez was then able to open the door, run away and call the police.
Hernandez identified Soto at trial. A video from the security cameras at the gas station
was played for the jury.
3. Soto’s Arrest and Statement
San Gabriel Police Detective Allen Sam reviewed the 99 Cents store surveillance
footage, identified Soto as a suspect, executed a search warrant on the residence of Soto’s
mother, then arrested Soto. Detective Sam advised Soto of his Miranda4 rights,
interviewed him, and showed him portions of the surveillance videos. The interview was
recorded and the videotape was played at trial. When asked why he committed the
crimes, Soto responded that he got into the “bad habit” of doing methamphetamine, then
“got hooked” and “had no other option to support my habit.” He said he “went ahead and
did” the crime (the robbery of the car wash/gas station) but “regretted it the next day” and
“should have known better.” Regarding the 99 Cents store robbery, Soto stated he “ran
out of money” and wanted to get high, and “the only option I had is to go in there and try
to get some money. That was my main thing, to uh, you know, to get high.” He claimed
that he used a toy gun that “looked real.” He used the same gun for the car wash. Soto
stated that he “ran out of dope” and “ran out of money,” so he walked to the gas station,
saw the attendant, and said “let me get that money, and I took out the toy gun. And the
guy got scared and he gave it to me.” He used the money to buy more drugs.
4. Trial on Prior Convictions and Counts 7 and 8
During the search of Soto’s mother’s home, Detective Sam recovered a Notice of
Release form reflecting Soto’s release on parole on May 10, 2010. Soto also stated
during his interview that he was released in 2010.
4
Miranda v. Arizona (1966) 384 U.S. 436.
5
Julie Wong, a paralegal with the Los Angeles County District Attorney’s Office,
testified regarding the “prison packet” supporting Soto’s prior convictions. Wong stated
that the prison packet contained Soto’s name, California Department of Corrections
number—a number unique to each inmate—a prison admittance date of January 11,
1995, and discharge date of August 11, 2010. We discuss the details of the prison packet
further in Section B post.
DISCUSSION
A. Ineffective Assistance of Counsel and Denial of Motion for New Trial
Soto contends the trial court erred in denying his motion for a new trial based on
ineffective assistance of counsel. Specifically, he claims his trial counsel failed to
investigate the viability of a voluntary intoxication defense. We conclude Soto has not
established that his counsel was ineffective, and therefore find no error by the trial court.
1. Factual Background
In July 2012, prior to trial, Soto’s trial counsel obtained an order appointing an
expert for a psychological evaluation. Dr. Timothy Collister evaluated Soto on June 10
and September 19, 2012. Dr. Collister noted that Soto began using marijuana and PCP
almost daily when he was 15 years old and then began using methamphetamine and
heroin regularly while incarcerated. Soto’s alcohol and substance abuse then became
“much more substantial, perhaps to the point of dependency” after his last release from
prison in 2010, with Soto using methamphetamine and snorting cocaine on a daily basis
until his arrest in the current case. Dr. Collister’s diagnoses included polysubstance
abuse, post traumatic stress disorder—related to the murder of his brother and a friend—
and “underlying mild but significant depression.” He recommended treatment for Soto’s
substance abuse, as well as psychotherapy and psychotropic medication with
antidepressants.
In his motion for a new trial filed June 13, 2013, Soto asserted, among other
grounds, that his trial counsel failed to investigate a voluntary intoxication or diminished
capacity defense, and failed to consult with an expert on the viability of those defenses.
6
He filed another motion on June 21, 2013, asking to continue the hearing “to determine
the need for an expert” and “to offer evidence regarding the use of meth.” At the hearing
the same day, Soto requested a 30-day continuance to “get an expert to come in and
explain the effect of meth and the reactions and the . . . .” The court responded that “one
of the things that you’re going to want to address to the court in that regard is whatever
the effects of methamphetamine might be, you were interviewed by Detective Sam. And
in that interview you seemed to make it very clear that you had a specific intent in
engaging in these criminal acts.” The court noted that Soto had made some “very
damning admissions” in his interview. The court then granted the continuance but
cautioned Soto that “this will be it,” as he was “getting a little bit concerned about the
slow pace of these post-conviction proceedings.” The court told Soto that he would have
to make a “very strong showing” for any further continuances.
At the continued hearing on July 18, 2013, Soto requested a further continuance
and an order appointing a new expert regarding his drug use and how that might have
impacted his ability to form the specific intent for the charged crimes. The court denied
the request, noting that “there is no reason” the request could not have been submitted
“long ago,” and that it would not make a difference as to the determination of the new
trial motion. The court then denied Soto’s motion for a new trial, finding Soto had failed
to show his counsel’s performance was deficient. The court noted that Soto’s trial
counsel “did a full workup concerning the issues of mental competence and mental state,”
including obtaining a “fairly fulsome report” by Dr. Collister. The court found that
Soto’s counsel made the “tactical decision” not to raise the voluntary intoxication
defense. Further, the court concluded that Soto could not show prejudice, as his
interview with Detective Sam established that he “made deliberative decisions to commit
these robberies for the specific purposes of supporting your habit.” Given those
admissions, the court found there was no reasonable likelihood or probability that a jury
would have looked at the voluntary intoxication defense and concluded that Soto did not
form the specific intent to commit these crimes. The court further noted that the evidence
7
in this case was “overwhelming,” pointing to the videos that “clearly captured” Soto “in
the act of the robbery and attempted robbery” and to Soto’s confessions.
2. Legal Principles
We review the court’s order denying the motion for a new trial de novo. (People
v. Ault (2004) 33 Cal.4th 1250, 1262.) However, we accept the trial court’s credibility
determinations and factual findings if supported by substantial evidence. (People v.
Collins (2010) 49 Cal.4th 175, 242; People v. Nesler (1997) 16 Cal.4th 561, 582.)
“A criminal defendant’s federal and state constitutional rights to counsel (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal
assistance. When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant
must first show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the defendant
must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
3. Soto’s Trial Counsel Was Not Ineffective
Soto argues that there “was sufficient evidence of voluntary intoxication in the
record to alert trial counsel that such a defense should be explored and developed to
negate the specific intent element of robbery and burglary.” He points to his statements
8
during his interview that he was so high on drugs during the offenses that he was unable
“‘to think of things until afterwards’” and to Dr. Collister’s conclusion that he was using
drugs on a daily basis and suffered from “mental disorders.” Although Soto
acknowledges Dr. Collister’s report, he claims it did not go far enough, as it “was not a
full workup concerning [Soto’s] mental state during the offenses” and did not assess
whether Soto’s drug use and mental illnesses “affected his ability to form a specific intent
to commit these crimes.” Soto suggests that his counsel “settled” on a defense that the
gun he used was not real5 without first conducting a proper investigation into “any
psychiatric or mental state factors.” We conclude that Soto’s counsel’s decision not to
continue to investigate or present a voluntary intoxication defense did not render him
ineffective.
Here, the record reveals that Soto’s counsel conducted an investigation of the
mental health and substance abuse issues that might have affected Soto’s ability to form
the specific intent to commit the charged crimes. Soto’s trial counsel retained an expert
who examined Soto extensively over two sessions and provided an 11-page report
detailing his findings. While Dr. Collister did not discuss the potential impact of Soto’s
substance abuse on his ability to form the intent to commit the crimes charged, it was not
unreasonable for Soto’s counsel to decide that further investigation into this area was
unnecessary given Soto’s statements during his interview. Specifically, Soto’s
admissions to Detective Sam that he went to both businesses in order to “try to get some
money” to buy more drugs and that he used a toy gun that “looked real,” provided strong
evidence that Soto formed the specific intent to commit the crimes. Soto’s statements
that he could not remember certain details of the crimes because he was “high” do not
undercut his repeated professions of his intent.
5
In closing argument, defense counsel acknowledged that Soto was “forthright” in
discussing why he committed the crime—“he needed meth.” Counsel then argued that
the firearm enhancements could not be established because Soto used a toy gun.
9
Further, Soto’s cited case, Jennings v. Woodford (9th Cir. 2002) 290 F.3d 1006, is
inapposite. In that capital case in which defendant was charged with robbery felony
murder and special circumstances, the defendant’s original counsel engaged an expert
psychiatrist to conduct a “preliminary” two-hour interview with defendant. (Id. at p.
1013.) When defendant obtained new counsel, that attorney did not speak with the
psychiatrist, did not request copies of defendant’s “voluminous” medical records, and did
not make any further attempts to investigate defendant’s mental state, possible history of
child abuse and involuntary commitment, or the possible effects of drug use on defendant
even though he was, a “heavy, long-time user,” who reported to the police that he had
been “‘strung out on goddamn crank for over a year. That’s why I was having such a
hard time remembering what the hell I was doing and where.’” (Id. at pp. 1013-1014.)
Accordingly, the court concluded that the attorney was “obliged to thoroughly investigate
[defendant’s] case in order to determine whether a mental state defense might have been
better than the alibi defense he had ‘settled on’ early.” (Id. at p. 1015.) Here, by contrast,
Soto’s counsel had sufficient evidence from which he reasonably could have concluded
that further investigation into a voluntary intoxication defense would not serve his
client’s best interests.
Further, there is nothing in the record to suggest that Soto’s counsel did not have a
rational, tactical purpose for deciding to focus on the argument that the gun used by Soto
was not real, rather than pursuing a voluntary intoxication defense. In fact, the trial court
noted it had “little doubt” based on the circumstances of the case, that defendant’s
counsel “considered these issues” and discussed them with Soto, and thereafter made the
tactical decision not to raise the voluntary intoxication defense. There is certainly no
indication in the record that Soto’s counsel was asked to provide an explanation for his
decision and failed to do so. In light of the foregoing considerations, we cannot say that
Soto’s counsel’s decision not to pursue or call an expert regarding voluntary intoxication
falls outside the “wide range of reasonable professional assistance.” (In re Valdez (2010)
49 Cal.4th 715, 729-730 [quoting Strickland v. Washington (1984) 466 U.S. 668, 689].)
10
In addition, Soto cannot show that he suffered prejudice as a result of his counsel’s
failure to pursue a voluntary intoxication defense. As noted by the trial court, the
“overwhelming” evidence of Soto’s guilt included his own confession and repeated
statements of intent to commit the crimes in order to “get money” and “get high,”
surveillance video showing Soto committing the crimes, and testimony by multiple
eyewitnesses. Under the circumstances, Soto cannot demonstrate that further
investigation into a voluntary intoxication defense would have resulted in a more
favorable outcome at trial. We therefore affirm the trial court’s denial of Soto’s motion
for a new trial.6
B. Insufficient Evidence of Prior Convictions
Soto contends there was insufficient evidence to support the jury’s finding that he
suffered five prior convictions and his corresponding sentencing enhancements should
therefore be reversed. We affirm in part and reverse and remand in part.
1. Factual Background
The information alleged Soto suffered the following five prior strike convictions
(encompassed in three cases):
1. section 245, subdivision (a)(2) (assault with a firearm), in case number
GA013692 on April 14, 1993;
2. section 211(robbery) in case number BA099601 on April 4, 1994;
3. section 215 (carjacking) in case number BA099601 on April 4, 1994;
4. section 215 (carjacking) in case number GA017493 on March 1, 1994;
and
5. section 215 (carjacking) in case number GA017493 on March 1, 1994
At the beginning of the bifurcated trial on the prior conviction allegations and
counts seven and eight (which alleged that Soto was a felon in possession of a firearm
6
Because we agree with the trial court’s conclusion that Soto’s motion for a new
trial, based on his ineffective assistance claims, lacked merit, we also reject Soto’s claim
that the trial court erred in denying his request for an additional continuance and for
appointment of an expert regarding the use of methamphetamine.
11
and were premised on the same prior felony convictions), the prosecutor moved to amend
the information to reflect December 28, 1994 as the correct date of the two prior
convictions alleged in case number BA099601. Soto did not object and the court granted
the motion.
As discussed above, the prosecution presented Soto’s CDC prison packet at trial as
evidence establishing his prior convictions. The first page of the packet was a cover
letter with the name “Jose Soto,” the CDC number J46547, and a discharge date of
August 11, 2010.7 The second through fourth pages of the packet contained a certified
chronological history from January 1995 to August 2010, containing the same name and
CDC number.
The following three pages were the abstracts of judgment for Soto’s prior
convictions:
The abstract for case number GA013692 lists the defendant as “Jose Soto, aka
Jose Escobar,” with the handwritten CDC number J46547, and shows a conviction on one
count pursuant to section 245, subdivision (a)(1) (noted as “asslt w/ firearm”),8 with an
enhancement for use of a firearm (§ 12022.5, subd. (a)), on April 14, 1993.)
The abstract for case number GA017493 lists the defendant as “Jose Soto, aka
Jose Escobar” and includes a handwritten CDC number.9 The abstract shows convictions
on two counts of carjacking (§ 215, subd. (a)), with a firearm enhancement as to one
count (§ 12022.5, subd. (a)), on March 1, 1994.
The abstract for case number BA099601 lists the defendant as “Jose Escobar, aka
Antonio Soto.” It does not contain a legible CDC number. The abstract shows
7
The Notice of Release discovered in Soto’s mother’s house also contained the
same name and CDC number.
8
As discussed below, the abstract contains an inconsistency regarding whether Soto
was convicted under section 245, subdivision (a)(1) (assault with a deadly weapon other
than a firearm) or subdivision (a)(2) (assault with a firearm).
9
The CDC number is partially cut off at the top, but appears to be the same number.
12
convictions on one count of robbery (§ 211) and one count of carjacking (§ 215, subd.
(a)), with a firearm enhancement as to each count (§ 12022.5, subd. (a)), on December
28, 1994.
The following two pages of the packet contained Soto’s fingerprint card dated
January 11, 1995, listing the name “Jose Soto,” the alias “Jose Escobar,” the same CDC
number, and the case numbers GA017493, GA013692, and BA099601. The final page
contained a photograph of a person with the listed name “J. Soto” and CDC number
J46547.
The jury found all five of the prior convictions alleged to be true. With respect to
case number GA013692, it found as “true” that Soto suffered a prior conviction for
“assault with a firearm in violation of Penal Code Section 245(a)(1).” Both the verdict
form and the jury instruction reflected an alleged violation of section 245, subdivision
(a)(1), rather than subdivision (a)(2) (as alleged in the information).
In discussing the discrepancy, the trial court initially indicated it would order the
case file, but does not appear to have done so. Following the reading of the instructions
to the jury, the court again raised the discrepancy. The prosecution requested, and
defense counsel did not object, that the court take judicial notice of the court file,
including the probation report, in determining whether Soto was convicted under
subdivision (a)(1) or (a)(2). The court noted that the inclusion of the firearm
enhancement under section 12022.5 would be “reasonably persuasive” to support the
inference that Soto was convicted under subdivision (a)(2), but stated it would review the
materials if needed after the jury returned its findings.
Following the verdict, the court stated it “suspect[ed] it actually was an (a)(2) and
simply was misidentified in the abstract of judgment,” but that the issue was “largely an
academic question because there are multiple strikes.” Thus, the court stated it did not
intend to “pursue this further” absent a request by defense counsel to do so. The court
therefore made a “tentative” finding that the conviction under section 245, subsection
(a)(1), was a strike, to be reconsidered if defendant provided additional relevant
13
information. Defense counsel indicated he would address the issue at sentencing;
however, by that time, defendant was representing himself in pro. per. and did not present
any further information.
2. Legal Principles
In reviewing a challenge to the sufficiency of the evidence, “the relevant inquiry is
whether, on review of the entire record in the light most favorable to the judgment, any
rational trier of fact could have found the elements of the offense beyond a reasonable
doubt. [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1180.) “Although we
must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if
the verdict is supported by substantial evidence, we must accord due deference to the trier
of fact. . . . [Citations.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
The jury’s role in a trial on prior convictions is to determine whether a defendant
“has suffered” the alleged prior conviction. (People v. Epps (2001) 25 Cal.4th 19, 25
(Epps); see also People v. Kelii (1999) 21 Cal.4th 452, 458-459 [noting the jury has “little
to do except to determine whether [the admitted] documents are authentic and, if so, are
sufficient to establish that the convictions the defendant suffered are indeed the ones
alleged”].) The trial court determines whether a prior conviction qualifies as a strike and
also the question of identity—whether the defendant is the person who suffered the prior
conviction. (Epps, supra, 25 Cal.4th at p. 25; section 1025, subd. (c).)
“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.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1066.) “‘[The] trier of fact is
entitled to draw reasonable inferences from certified records offered to prove a defendant
suffered a prior conviction. . . .’ [Citation.]” (Ibid.) “[O]fficial government records,”
14
including a certified abstract of judgment, that clearly describe a prior conviction
“presumptively establish that the conviction in fact occurred.” (Id. at pp. 1066, 1070.)
3. Case Number GA013692
Soto points to the inconsistent allegations regarding whether case number
GA013692 reflects a conviction for section 245, subdivision (a)(1), or subdivision (a)(2),
and argues that there was insufficient evidence that he suffered a prior conviction under
either subdivision. We agree.
While the information alleged that Soto’s prior conviction was pursuant to section
245, subdivision (a)(2), the instructions to the jury and the verdict form both state that
Soto’s conviction was pursuant to section 245, subdivision (a)(1). Section 245,
subdivision (a)(1) covers assault with a “deadly weapon or instrument other than a
firearm,” while subdivision (a)(2) covers assault with a firearm. As detailed above, the
abstract of judgment for this case was internally inconsistent—it listed subdivision (a)(1),
but described the charge as “asslt w/ firearm” and further alleged an enhancement for use
of a firearm under section 12022.5. While the court appeared to conclude that the
conviction was likely under subsection (a)(2), that conclusion is inconsistent with the
jury’s verdict that Soto suffered a prior conviction under subsection (a)(1). Moreover,
the court then made a “tentative” finding that Soto suffered a prior strike under
subsection (a)(1), which was, again, unsupported by the court’s own statements regarding
the evidence. As such, there was insufficient evidence to support the jury’s finding that
Soto was convicted of violating section 245, subsection (a)(1), in case number
GA013692.
We therefore reverse the jury’s verdict as to its true finding on the prior conviction
on case number GA013692.10 We similarly reverse the trial court’s finding that this prior
conviction was a serious felony (§§ 1170.12, subds. (a)-(d), 667, subds. (a)-(i)). We
10
We do not reach Soto’s argument that the abstract of judgment does not establish
his prior conviction because it reflects a different name. Moreover, as discussed below,
we find that contention lacks merit.
15
further remand to the trial court for consideration of a retrial on this finding, or, in the
absence of a true finding in a retrial, for resentencing without the use of case number
GA013692 for the purposes of the prior serious felony conviction enhancements under
section 667, subdivision (a)(1). We note that the trier of fact may look to the entire
record of the conviction in determining the truth of prior conviction allegations. (People
v. Guerrero (1988) 44 Cal.3d 343, 356; see also People v. Reed (1996) 13 Cal.4th 217,
230 [reporter’s transcript of preliminary hearing is part of the record of prior conviction];
People v. Trujillo (2006) 40 Cal.4th 165, 179 [excluding defendant’s statements made in
probation report after guilty plea from the record of the prior conviction, as “such
statements do not ‘reflect[] the facts of the offense for which the defendant was
convicted.’ [Citation.]”].)
4. Case Number BA099601
Soto contends there was insufficient evidence to support the factual findings
regarding the two prior convictions in case number BA099601 because the date of
conviction alleged in the information (April 4, 1994) does not match the date of
conviction in the abstract of judgment (December 28, 1994). However, the information
was amended at the prosecution’s request at the beginning of the trial on the prior
convictions and thereafter reflected the same date, December 28, 1994, shown on the
abstract of judgment. Soto did not object to the amendment. The verdict forms
submitted to the jury on these prior convictions also contained the date of December 28,
1994. We conclude that the certified abstract of judgment was sufficient evidence to
establish that Soto suffered prior convictions for robbery and carjacking on December 28,
1994.11
11
Soto also argues that the fingerprint card and the chronological history contain
conflicting evidence regarding these convictions. We disagree. While the fingerprint
card appears to include a handwritten description accompanying case number BA099601,
citing a different Penal Code section (section 212.5, subdivision (a), instead of section
211), the remainder of the notation—including the case number, the count under section
215 and the description of the crimes as robbery and carjacking—all match the abstract of
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5. Case Number GA017493
With respect to the prior convictions on two counts of carjacking in case number
GA017493, Soto argues that the prison packet did not sufficiently establish that he
suffered these convictions because the abstract of judgment and fingerprint card do not
include his name. Both documents list the defendant as “Jose Soto,” with the alias “Jose
Escobar.” We reject this contention.
Substantial evidence supported the conclusion that “Jose Soto,” “Jose Escobar,”
and “Antonio Soto” were the same person who suffered the alleged prior convictions.
The same CDC number (J46547) was reflected on the cover page of the prison packet,
the chronological history, two of the three abstracts of judgment (including for case
number GA017493), the fingerprint card, the photograph, and the Notice of Release
found in Soto’s mother’s home. The prosecution presented evidence that the CDC
number was unique to each prisoner. The name “Jose Escobar” was included in all three
abstracts of judgment, including the abstract for case number BA099601, which also
included the name “Antonio Soto.” The date of birth on the Notice of Release matched
Soto’s date of birth listed on the abstract for the current case. The prosecutor further
contended that the photograph in the prison packet was “generally consistent” with the
appearance of Soto in court, as well as with the prior photos and video footage of Soto
presented at trial. Having considered all of this evidence, the trial court found that “this
all does appear to be Mr. Antonio Soto or the person who is before the Court.” We find
the trial court had sufficient evidence to reasonably reach this conclusion.
6. Counts 7 and 8 Based on Soto’s Prior Convictions
In counts seven and eight, Soto was charged with possession of a firearm by a
felon (§ 12021, subd. (a)(1).) The information listed four predicate prior convictions in
judgment. Moreover, even if this notation could support the inference Soto advances,
that does not mean the remaining evidence introduced by the prosecution was insufficient
to establish Soto’s prior convictions. With respect to the chronological history, the entry
showing that Soto was received in prison on January 11, 1995 does not contradict the
finding that he was convicted of the alleged offenses on December 28, 1994.
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support of each count (excluding one of the two carjacking counts in case number
GA017493). Soto contends that there was insufficient evidence for the jury to have
found that Soto suffered any of the prior convictions listed in counts seven and eight.
As detailed above, we affirm the jury’s findings as to three of the four prior convictions
supporting these counts. Accordingly, there was substantial evidence to support the
jury’s determination that Soto suffered at least one prior conviction and therefore to
establish that element of the crime.
C. Jury Instruction Regarding Reasonable Doubt
Soto contends that the trial court “failed to inform the jury that it must find ‘each
element’ of the offense or enhancement to be proven beyond a reasonable doubt.” We
find that Soto has forfeited this claim and, in any event, the trial court did not err in
instructing the jury regarding the burden of proof.
The court instructed the jury with standard instruction, CALCRIM No. 220, which
stated that the presumption of innocence “requires that the People prove a defendant
guilty beyond a reasonable doubt. Whenever I tell you the People must prove something,
I mean they must prove it beyond a reasonable doubt unless I specifically tell you
otherwise.” As an initial matter, Soto did not object to or request clarification of this
instruction at trial. Therefore, we find that Soto forfeited his right to challenge this
instruction. (See People v. Catlin (2001) 26 Cal.4th 81, 149 [“‘“Generally, a party may
not complain on appeal that an instruction correct in law and responsive to the evidence
was too general or incomplete unless the party has requested appropriate clarifying or
amplifying language.”’ [Citations.]”].) Notably, Soto does not address the forfeiture
issue in his reply.
Further, even if we were to reach the merits, we would find that the trial court
properly instructed the jury with CALCRIM No. 220. The California Supreme Court and
multiple Courts of Appeal have rejected challenges to the language of this instruction,
including the precise language identified by Soto. (People v. Ramos (2008) 163
Cal.App.4th 1082, 1088-1089 [concluding “that the instructions, taken as a whole,
18
adequately informed the jury that the prosecution was required to prove each element of
the charged crime beyond a reasonable doubt”]; see also People v. Campos (2007) 156
Cal.App.4th 1228, 1239, and cases cited therein.) Soto’s suggestion that we should find
that Ramos was wrongly decided is unpersuasive.
D. Imposition of Additional Fees
The Attorney General claims that the trial court should have imposed court
security fees and criminal conviction assessments for each conviction, and requests
modification of the abstract of judgment to include the additional fees. We agree.
The trial court here imposed two $40 court security fees and two $30 criminal
conviction assessments pursuant to Soto’s convictions on counts two and six. The
Attorney General argues that the court additionally should have imposed the same fees
for the convictions on counts one, seven, and eight. Soto does not dispute this
contention. We agree that the trial court failed to impose the proper security fees and
assessments.
The court security fee (§ 1465.8, subd. (a)(1)) and criminal conviction assessment
(Gov. Code, § 70373) “shall” be imposed on every count. (See People v. Garcia (2014)
224 Cal.App.4th 738, 744-745.) The omission of mandatory fees and assessments may
be corrected for the first time on appeal. (People v. Castellanos (2009) 175 Cal.App.4th
1524, 1530.) Accordingly, the abstract of judgment is ordered modified to reflect three
$40 court security fees and three $30 criminal conviction assessments on Soto’s
convictions on counts one, seven, and eight.
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DISPOSITION
We reverse the verdict with respect to the finding of “true” on Soto’s prior
conviction under case number GA013692, as well as the trial court’s corresponding
finding that the prior conviction was a serious felony, and remand for further proceedings
consistent with this opinion. We further order the abstract of judgment to be modified to
reflect an additional $120 in court security fees and $90 in criminal conviction
assessments. We affirm the judgment in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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