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Filed 11/4/14 P. v. Johnson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Modoc)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY SCOTT JOHNSON,

Defendant and Appellant.

C073799

(Super. Ct. No. F07207)

The trial court sentenced defendant Timothy Scott Johnson to state prison after 

finding he had violated probation for the third time and determining a prior conviction for 

first degree burglary in Oregon was a strike that rendered defendant ineligible for a 

county jail term. (Pen. Code, § 1170, subd. (h)(3).)1 Contending there is insufficient 

 

1 Undesignated section references are to the Penal Code.
2

evidence the Oregon conviction qualifies as a strike, defendant requests remand for 

resentencing. We conclude remand is necessary for the trial court to obtain further 

evidence as to the Oregon conviction to determine whether the conviction qualifies as a 

strike.

FACTUAL AND PROCEDURAL BACKGROUND

In 2010, defendant pled no contest to one count of second degree burglary 

(§§ 459/460) and was granted formal probation for five years.2 In 2013, defendant 

admitted his third probation violation. 

A supplemental probation report filed April 17, 2013, stated defendant appeared 

ineligible for a county jail sentence (§ 1170, subd. (h)) because he had sustained prior 

serious and violent felony convictions; “however, these convictions occurred in the state 

of Oregon and the Modoc County District Attorney’s Office is in the process of review to 

determine if the same set of facts [is] present.” 

On April 19, 2013, the People filed a statement in aggravation alleging in 1996 

defendant was convicted in Oregon of first degree burglary, a conviction that counted as 

a strike under California law. The statement attached five exhibits.

Exhibit A captioned, “Amended Judgment,” was signed by Circuit Judge Gregory 

G. Foote of the Circuit Court of Lane County, Oregon, on October 16, 1996, and filestamped on the same date. The document indicates that on September 23, 1996, 

defendant “Timothy Scott Molan” was convicted of first degree burglary committed on or 

about September 1, 1995, after the trial court accepted his plea, and was sentenced to 

serve 30 months in custody. 

 

2 According to the probation report, in 2007 defendant and a codefendant broke into 

two buildings on a ranch in Modoc County, California, and removed the victim’s 

property. 
3

Exhibit B sets out the definition of first degree burglary under the 1996 Oregon 

Revised Statutes (O.R.S.) section 164.225:

“(1) A person commits the crime of burglary in the first degree if the person 

violates ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a 

building or in immediate flight therefrom the person:

“(a) Is armed with a burglar’s tool as defined in ORS 164.235 or a deadly 

weapon; or

“(b) Causes or attempts to cause physical injury to any person; or

“(c) Uses or threatens to use a dangerous weapon.”

Exhibit C sets out the definition of second degree burglary under the 1996 O.R.S.

section 164.215:

“(1) Except as otherwise provided in ORS 164.255, a person commits the crime of 

burglary in the second degree if the person enters or remains unlawfully in a building 

with intent to commit a crime therein.” 

Exhibit D captioned, “Indictment,” filed in Lane County Circuit Court (Oregon), 

signed by an assistant district attorney and the foreman of the grand jury, and filestamped September 13, 1995, alleged (as amended by hand) defendant “Timothy Scott 

Molan” “on or about the 1st day of September, 1995, in the county aforesaid, did 

unlawfully and knowingly enter and remain in an occupied dwelling located at 818 East 

15th, Eugene, Oregon, with the intent to commit the crime of theft.”

Exhibit E sets out the California definition of burglary in section 459. In pertinent 

part, section 459 provides that “[e]very person who enters any house, room, apartment, 

tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building . . . with 

the intent to commit grand or petit larceny or any felony is guilty of burglary. As used in 

this chapter, ‘inhabited’ means currently being used for dwelling purposes, whether 
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occupied or not. A house, trailer, vessel designed for habitation, or portion of a building 

is currently being used for dwelling purposes if, at the time of the burglary, it was not 

occupied solely because a natural or other disaster caused the occupants to leave the 

premises.”

The statement in aggravation asserted the Oregon indictment “clarifies” the 

offense of which defendant was convicted by showing the burglary was of an occupied 

dwelling and was done with the intent to commit theft, thus satisfying all the elements of 

first degree burglary under California law. 

At a hearing on April 23, 2013, defense counsel disputed the claim defendant had 

a prior strike and stated he would object to the trial court taking judicial notice of the 

exhibits attached to the statement in aggravation. The court told the prosecutor she 

would need to obtain a certified copy of defendant’s conviction. The prosecutor said the 

People would need more time. The court responded: “Then maybe we can get some 

additional documents that set out some facts or something. I don’t know, it’s up to you.” 

The trial court and the parties discussed whether defendant had a right to be 

sentenced within 20 court days of entering his plea and whether, if so, he had waived that 

right. Defense counsel then stated he would stipulate to exhibits A and B attached to the 

statement in aggravation, but not to the others. 

During a recess, the court reporter informed the trial court defendant had not 

waived time on March 26, 2013, when he entered his plea. Although the court doubted 

whether the right to speedy sentencing under section 1191 applied to a probation 

violation proceeding, the court stated: “[I]n an abundance of caution, since there is no 

reflection of a time waiver, and we don’t for sure know the answer to the question, I’m 

prepared to go forward with sentencing at this time.” 
5

Noting defense counsel’s objection to the exhibits (other than exhibits A and B), 

the prosecutor requested a one-day continuance to try to get additional documents. The 

trial court stated it intended to take judicial notice of the exhibits under Evidence Code 

section 452, subdivisions (a) and (d).3 The court specified subdivision (d) covered the 

People’s “copy of the [i]ndictment [exhibit D], because it’s a court record, and it has a 

file stamp on it.” 

Defense counsel objected, exhibit D “is not a record of an Oregon State Court. . . . 

[I]n order for that Evidence Code section to apply, the Court would need to have certified 

records from that Superior Court. [¶] The Court does not have that, it has . . . a copy of 

what purports to be that, so it doesn’t qualify as a document that this Court could take 

judicial notice of.” The trial court overruled the objection, reasoning as follows: 

“I understand that, and I think in a very technical, strictly technical sense you are 

correct, but one of the bases for the Court’s evaluation is indicia[] of reliability, and I 

don’t have any evidence to suggest to me that this document has somehow been modified 

or altered in some way. [¶] And it bears on its face copies of signatures of Oregon 

officials, as well as . . . an Oregon Circuit Court file stamp, which to me, provides some 

indicia of reliability that in fact that was the Indictment that was filed in this case.” 

The trial court tentatively ruled the indictment showed defendant’s crime involved 

entry of an inhabited dwelling, which made it a strike. 

Defense counsel argued: (1) Under the “least adjudicated elements” test (People 

v. Guerrero (1988) 44 Cal.3d 343, 354-355 (Guerrero); see People v. Griffis (2013) 

 

3 Evidence Code section 452, subdivision (a), permits judicial notice of “[t]he 

decisional . . . law of any state of the United States.” Evidence Code section 452, 

subdivision (d), permits judicial notice of “[r]ecords of . . . any court of record of . . . any 

state of the United States.”
6

212 Cal.App.4th 956, 965 (Griffis)), the crime of first degree burglary in Oregon is 

“essentially a California second degree burglary, entering a building with an intent to . . . 

steal or commit some other felony”; (2) since the People’s exhibits showed only that 

defendant was indicted on September 13, 1995, but “a plea of some kind” was entered 

over a year later, and there was no record of what defendant actually pled to, the least 

adjudicated elements test applied; and (3) therefore, the court could not properly find the 

prior conviction a strike. 

The trial court asked the prosecutor: “[W]hat I have in front of me to conclude 

that in fact [defendant] was convicted of a crime which makes him ineligible for [section 

1170, subdivision] (h) sentencing and restricts his custody credit availability, is an 

Indictment and then a subsequent judgment. [¶] But I don’t know necessarily whether he 

pled to something with some other language. [¶] In other words, it’s not uncommon here 

that someone will be charged with a particular factual scenario, and plead to the crime, 

but on different facts, if you understand what I’m saying. [¶] So to make it simple, 

without knowing what was said at the time that he entered his plea in the State of Oregon, 

I don’t know whether they changed the language to say that he was . . . admitting being 

caught with burglar tools, as opposed to an occupied dwelling. [¶] How do I know?” 

The prosecutor replied that if there had been any indication in the documents or in 

the file that such a change might have occurred, the People would have brought it to the 

trial court’s attention.

The trial court ruled: “I feel compelled in this case to make a finding that the 

People have provided ample evidence for the Court to conclude that the conviction 

suffered by [defendant] in the State of Oregon renders [defendant] ineligible for 

sentencing under [section 1170, subdivision] (h), and limits his ability to obtain day-forday credits for time served.” 
7

The trial court sentenced defendant to serve three years in state prison. The court 

awarded defendant 157 days of presentence custody credits (105 actual days and 52 

conduct days).

DISCUSSION

Defendant contends there is insufficient evidence his Oregon prior conviction was 

a strike because (1) judicial notice of the Oregon indictment was improper without a 

certified copy of the indictment, (2) even if the court could properly take judicial notice 

of the indictment, judicial notice cannot admit the facts stated in the noticed document as 

true, (3) since the indictment was not a certified copy and was not otherwise 

authenticated, it was inadmissible, (4) the crimes alleged by the indictment as the basis 

for the first degree burglary charge are not all felonies in California, (5) the predicate 

offenses for first degree burglary under the Oregon statute are not all felonies in 

California, and (6) the prosecution failed to produce any evidence the record of 

conviction is defendant’s, as the person named therein is “Timothy Scott Molan.” We 

conclude that even if the Oregon court documents were properly in evidence, they do not

prove defendant’s Oregon prior conviction would constitute first degree burglary in 

California.

At the outset, we reject defendant’s claim that the discrepancy in names between 

the Oregon case and the California case requires reversal. Although the record does not 

explain the discrepancy, it shows the following: (1) According to the 2010 probation 

report, defendant sustained a conviction for first degree burglary in Lane County, 

Oregon, on September 26, 1996, and was sentenced to serve 30 months in prison; 

according to the “Amended Judgment” (exhibit A), defendant (under the name “Timothy 

Scott Molan”) pled guilty to that charge in that county on September 23, 1996, and the 
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sentence was entered on October 24, 1996.4 (2) The supplemental probation report filed 

in April 2013 realleged this conviction and sentence. (3) The People’s statement in 

aggravation asserted defendant was “AKA, Timothy Scott Molan.” (4) Defendant did not 

challenge this assertion at any hearing on the present probation violation. Thus, 

defendant impliedly admitted he was the person described in the Oregon court documents

and may not now retract that admission. (See People v. Watkins (2009) 170 Cal.App.4th 

1403, 1408-1410 [criminal estoppel]; see generally Bogacki v. Board of Supervisors

(1971) 5 Cal.3d 771, 780 [forfeiture of factual contentions raised first on appeal].)

We also reject defendant’s claim that the trial court could not find defendant’s 

conviction to be proven because the court could not properly rely on the Oregon 

indictment. First, defendant contends the trial court could not properly take judicial 

notice of the indictment under Evidence Code section 452, subdivision (d), because the 

copy before the court was uncertified. But he does not cite authority holding a trial court 

may not take judicial notice of uncertified copies of court records from another state, and 

we have not found any such authority. Defendant relies on People v. Preslie (1977) 

70 Cal.App.3d 486 (Preslie), Goshgarian v. George (1984) 161 Cal.App.3d 1214 and 

People v. Medina (1990) 51 Cal.3d 870 (Medina), but in all of these cases parties 

attached uncertified copies of court records or other documents to their appellate briefs, 

contrary to the required procedure for requesting judicial notice on appeal. (Medina, 

supra, 51 Cal.3d at p. 890; Goshgarian, supra, 161 Cal.App.3d at p. 1225; Preslie, supra, 

70 Cal.App.3d at pp. 492-495.) Thus, these decisions are inapposite.5

 

4 The one-month discrepancy in dates appears to be an inadvertent error in the 

probation report.

5 According to defendant Preslie states that before a court may judicially notice a 

trial court record, “[I]t must be assured that the original is actually on file in the superior 
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Defendant acknowledges the decisions he cites concern appellate courts only, but 

asserts: “[T]heir reasoning applies with greater force to court records from foreign 

jurisdictions.” However, defendant cites no authority for this proposition. We need not 

consider legal propositions unsupported by authority. (Kim v. Sumitomo Bank (1993) 

17 Cal.App.4th 974, 979.)

Next, defendant contends: “The Oregon indictment is insufficient to support a 

finding of a prior serious felony because judicial notice cannot admit the facts stated in 

the noticed document as true.” We need not decide whether this point is correct. The 

amended judgment, which stated defendant was convicted of first degree burglary, was 

also before the trial court and stipulated to by trial counsel. Defendant does not explain 

why that document was insufficient to show he was convicted of that offense.

Defendant lastly contends the indictment was inadmissible because it was not 

certified or properly authenticated under Evidence Code sections 452.5 (electronic 

records of conviction), 1401, subdivision (b), 1530, and 1531. Again, defendant is silent 

about the amended judgment and trial counsel’s stipulation that the document was 

admissible. Furthermore, defendant does not cite authority for the proposition that a trial 

court may judicially notice court records from the court of another state only if they have 

been authenticated under one or more of the above statutes, and we have not found any 

such authority.

 

court and that the copy of the document or record is in fact a true and correct copy. 

Without such assurance the court cannot act with confidence. Accordingly, when a party 

desires the appellate court to take judicial notice of a document or record on file in the 

court below the parties should furnish the appellate court with a copy of such document 

or record certified by its custodian.” (Preslie, supra, 70 Cal.App.3d at pp. 494-495.) 

However, the first sentence from this quotation actually begins: “Before the appellate 

court can properly act upon a request to take judicial notice of a document or other record 

from the trial court which is purportedly part of that record, it must be assured [etc.].” 

(Id. at p. 494; italics added.) In other words, this passage speaks only of appellate courts.
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Assuming the documents proffered by the People were properly considered by the 

trial court, however, we agree with defendant they do not prove his Oregon offense was a 

strike under California law.

“ ‘Under the Three Strikes law, a prior conviction from another jurisdiction 

constitutes a strike if it is “for an offense that includes all of the elements of the particular 

felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 

1192.7.” [Citation.] Thus, the prior foreign conviction “must involve conduct that would 

qualify as a serious [or violent] felony in California.” [Citation.] “To make this 

determination, the court may consider the entire record of the prior conviction as well as 

the elements of the crime.” [Citation.] If the record insufficiently reveals the facts of the 

prior offense, the court must presume the prior conviction was for the least offense 

punishable under the foreign law.’ [Citation.]” (Griffis, supra, 212 Cal.App.4th at p. 

965.)

Here, the indictment showed defendant was accused of first degree burglary by 

means of “enter[ing] and remain[ing] in an occupied dwelling” with the intent to commit 

theft therein. The amended judgment showed defendant entered a plea of guilty to first 

degree burglary on unspecified facts. This showing was insufficient to prove defendant’s 

crime was first degree burglary as defined in California.

First degree burglary under Oregon law may be committed in numerous ways 

other than the conduct that constitutes first degree burglary in California: to enter an 

inhabited dwelling with the intent to commit larceny or any felony therein. (§ 459.) The 

Oregon statutes (before the trial court as exhibits B and C) also provide that first degree 

burglary occurs if the offender enters “a dwelling” (not necessarily an inhabited dwelling) 

“with intent to commit a crime therein” (not necessarily larceny or a felony) (O.R.S. 

§§ 164.215, subd. (1), 164.225, subd. (1)) -- or if, either while entering, inside, or fleeing 
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a building, the offender “[i]s armed with a burglar’s tool . . . or a deadly weapon” (O.R.S. 

§ 164.225, subd. (1)(a)), “[c]auses or attempts to cause physical injury to any person” 

(O.R.S. § 164.225, subd. (1)(b)), or “[u]ses or threatens to use a dangerous weapon” 

(O.R.S. § 164.225, subd. (1)(c)). 

The offense alleged in the indictment would satisfy all the elements of first degree 

burglary in California, but the amended judgment does not show defendant pled guilty to 

what was alleged in the indictment. As the trial court observed, defendants sometimes 

plead to facts that differ materially from those originally alleged. Because the record 

does not exclude the possibility defendant pled to facts that would amount to first degree 

burglary in Oregon but not in California, the evidence before the trial court did not

establish defendant was convicted of first degree burglary as defined in California. 

Under the “least adjudicated elements” test, which applies to foreign convictions where 

the record of conviction does not enable us to determine the facts of the underlying 

offense (Guerrero, supra, 44 Cal.3d at pp. 354-355), we must deem defendant’s 

conviction to constitute only second degree burglary on the present record.

Therefore, we must vacate defendant’s sentence (including the award of 

presentence custody credits) and remand the matter to the trial court for resentencing. 

Because there is no double jeopardy bar to sentencing proceedings (Monge v. California 

(1998) 524 U.S. 721 [141 L.Ed.615]; People v. Monge (1997) 16 Cal.4th 826; Griffis, 

supra, 212 Cal.App.4th at p. 965), the People may introduce further evidence that 

defendant’s offense constituted a strike, if such evidence exists. If it does, the trial court 

is directed to reinstate defendant’s sentence and to recalculate his presentence custody 

credits in accordance with that sentence. If not, the court is directed to resentence 

defendant to county jail (§ 1170, subd. (h)) and to recalculate his presentence custody 

credits accordingly.
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DISPOSITION

The matter is remanded to the trial court with directions to hold a new sentencing 

hearing to determine whether defendant’s Oregon conviction for first degree burglary is a 

strike under California law, and to resentence defendant according to the evidence 

presented at the new hearing.

 HOCH , J.

We concur:

 BLEASE , Acting P. J.

 BUTZ , J.