Filed 1/23/14 P. v. Caldwell CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO TRACY CALDWELL,

Defendant and Appellant. B241106

(Los Angeles County Super. Ct. No. YA079862)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Affirmed. Jeffrey J. Douglas, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, A ssistant Attorney Ge neral, James William Bilderback II, and Alene M. Games, Deputy Attorneys Gene ral, for Plaintiff and Respondent.

_______________2 A jury convicted Ricardo Tracy Caldwell of two counts of robbery and found true special allegations he had suffered two pr ior serious felony convictions within the meaning of the three strikes law and Penal Code section 667, subdivision (a)(1). The trial court dismissed one prior strike conviction in furtherance of justice and sentenced Caldwell to an aggregate state prison term of 18 years. Caldwell challenges his sentence, contending there is insufficien t evidence his prior robber y convictions in Maryland qualified as serious felonies in California. We affirm.

FACTUAL AND PROCED URAL BACKGROUND Caldwell was charged in an amended info rmation with three counts of robbery (Pen. Code, § 211.) 1 It was specially alleged Caldwe ll had suffered two prior convictions in Maryland for serious or violent felonies (robbery with a deadly weapon) within the meaning of the three strikes law (§§ 667, subds . (b)-(i), 1170.12, subds. (a)-(d)). One of the prior convictions was alleged to be a se rious felony within the meaning of section 667, subdivision (a)(1). Caldwe ll pleaded not guilty and deni ed the special allegations. At trial the People presented eviden ce that on November 14, 2010 Caldwell

reached across a cashier’s counter at a retail store and stole $260 to $300 from the cash register, overpowering the store employee who had grabbed Cald well’s wrist in an unsuccessful effort to prevent him from taki ng the money (count 1). On December 20,

2010 Caldwell returned to the same store and reached over a different cashier’s desk to grab money from the register, once again physically overcoming the store employee’s efforts to stop him (count 3). Both store empl oyees testified they were afraid of Caldwell

at the time of the offenses. In the same proceeding the People submitted certified documents from the Maryland trial court showing (1) Caldwell ha d pleaded guilty to ro bbery with a deadly weapon in Maryland on November 9, 1977 and was sentenced to an aggregate state prison term of four years six months; and (2) Caldwell had pl eaded guilty to robbery with

1 Statutory references are to the Pena l Code unless otherwise indicated.3 a dangerous weapon on January 26, 1981 and was sentenced to an aggregate state prison term of 10 years for that offense. The jury convicted Caldwell on counts 1 and 3 2 and found true he had suffered the two alleged prior convictions in Maryland. The court struck one prior conviction in furtherance of justice (§ 1385, subd. (a)) a nd sentenced Caldwell to an aggregate state prison term of 18 years. 3

DISCUSSION

1. Governing Law A defendant who has suffered a prior convic tion for a serious or violent felony is subject to sentencing under the three stri kes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Similarly, a defendant who has been convicted of a serious felony and has suffered a prior conviction for a serious fe lony is subject to a mandatory five-year sentence enhancement for each prior serious fe lony conviction that was brought and tried separately. (§ 667, subd. (a)(1).) Prior co nvictions from other jurisdictions may qualify for similar treatment provided certain require ments are met: Specifi cally, a prior out-ofstate felony conviction may qualif y as a strike if the foreign offense includes “all of the elements” of the particular felony in Ca lifornia and that felony is identified under California as a serious felony (§ 1192.7, subd. (c )) or a violent felony (§ 667.5, subd. (c)). (See §§ 667, subd. (d)(2); 1170.12, subd. (b)(2); People v. Warner (2006) 39 Cal.4th 548,

2 The amended information also charged Ca ldwell with a robbery on December 4, 2010. The jury acquitted Caldwe ll of that offense, as well as the lesser-included larceny offense.

3 Caldwell’s sentence consisted of the middle term of three years on count 1, doubled under the three strikes law, plus one year (one-third the middle term) on count 2, doubled under the strikes law, plus two fi ve-year enhancements for each prior serious felony conviction found by the jury to be true. (§§ 667, subd. (a)(1), 1 385, subd. (b) [court may not strike a prior serious felony conviction for purposes of § 667 enhancement]). Caldwell did not object in the trial court and does not argue on appeal it was improper to apply two section 667, su bdivision (a), five-year enhancements when only one prior serious felony conviction was speci fically alleged under that code section. (Both prior Maryland convictions were allege d in the information to constitute serious felonies under the three strikes law.)4 552-553.) Similarly, a prior felony convic tion from another jurisdiction may be used to support a sentence enhancement under section 6 67, subdivision (a)(1), if the out-of-state

offense “includes all of the elements” of a serious felony as defined in California. (§ 667, subd. (a)(1); Warner, at p. 553.) It is the conduct that comprises the out-of-s tate offense that matters, not the label the foreign jurisdiction gives the offense. (See People v. McGee (2006) 38 Cal.4th 682, 691 [“a conviction from another jurisdiction mu st involve conduct th at would qualify as a

serious” or in the case of the three strike s law, violent, felony in California]; People v. Avery (2002) 27 Cal.4th 49, 52 [s ame].) In determining wh ether a prior out-of-state felony conviction qualifies as a serious or violent felony in California, the trier of fact may look to the entire record of conviction, but no further. When the reco rd does not disclose the facts of the offense actually committed, the court must presume the prior conviction was for the least offense pu nishable under the foreign law. ( People v.

Guerrero (1988) 44 Cal.3d 343, 352; People v. Roberts (2011) 195 Cal.App.4th 1106, 1116-1117.)

2. The Court Did Not Err in Concluding Caldwell’s Prior Maryland Convictions Qualified as Serious Felonies Robbery is classified as both a serious an d a violent felony in California. (See §§ 1192.7, subd. (c)(19) [seri ous felony]; 667.5, subd. (c)(9 ) [violent felony].) In asserting his prior Maryland convictions for robbery with a da ngerous weapon do not qualify as serious or violent felonies for purpo ses of the three strikes law or as serious felonies for purposes of section 667, subdiv ision (a)(1), Caldwell asserts the elements of robbery under Maryland law are more expans ive than in California: In California robbery is limited to the “‘felonious taking of personal property in the possession of another, from his person or immediate presen ce, and against his will, accomplished by means of force or fear’” ( People v. Williams (2013) 57 Cal.4th 776, 786-787; § 211), while in Maryland robbery may include not only theft of property by force or fear, but also theft of services by force or fear (Md. Code, Crim. Law, § 3-401, subd. (e)). Since no facts concerning the conduct constituting the un derlying convictions were introduced into5 evidence for the jury to cons ider, Caldwell argues we must find he was convicted for the least offense possible, theft of services by force or fear, which would not constitute a robbery under California law.

a. The finding that Caldwell’s prior c onvictions were serious felonies under California law was made by the court, not the jury At the threshold, both Caldwell and the People erroneously presume we review the jury’s finding the Maryland robberies qualifie d as strikes or sentencing enhancements. The jury found Caldwell had twice been convic ted in Maryland of ro bbery with a deadly weapon, once in 1977 and again for a separate offense in 1981. It did not find, and was not asked to consider, whether the Maryla nd offense included all the elements and conduct of robbery as defined by California law. 4 That determination, requiring a comparative analysis of the elements of th e offense in California and in the foreign jurisdiction, is a legal questio n for the trial court. (See People v. McGee, supra, 38 Cal.4th at pp. 703, 706 [when elements of offense differed in California and in Nevada where defendant was convicted, question wh ether prior out-of-state conviction qualified as serious felony is “a legal determin ation of the nature of defendant’s prior convictions as established by the record of the prior crimin al proceedings”; “[t]his is an inquiry that is quite different from the resolu tion of the issues submitted to a jury, and is one more typically and appropriately un dertaken by a court”].)

4 The jury was instructed, “If you find the defendant guilty of a crime, you must also decide whether the People have proved the additional allegation that the defendant was previously convicted of other crimes. It has already been determined that the defendant is the person named in the exhibits and testimony relating to the events which occurred in the State of Maryland. [¶] Th e People allege that the defendant has been convicted of: [¶] 1. A violation of Crimin al Code section 3-401, Robbery with a Deadly Weapon, on 11/9/77, in the St ate of Maryland, in Case Numb er 17709128. [¶] And [¶] 2. A violation of Criminal Code section 3-401, Robbery with a Deadly Weapon, on 1/26/81, in the State of Mary land, in Case Number 28100215 . [¶] Consider the evidence presented on this allegation only when deciding whether th e defendant was previously convicted of the crimes alleged. Do not consider this evidence as proof that the defendant committed any of the crimes with which he is cu rrently charged or for any other purpose. [¶] You must consider each alleged conviction separately. The People have the burden of proving e ach alleged conviction beyond a r easonable doubt. . . .”6 Here, prior to submitting evidence of Cald well’s prior convictions to the jury, the court found the offenses, if they had been committed, qualified as vi olent and or serious

felonies under California law. We review that legal determination de novo. ( People v. McGee, supra, 38 Cal.4th at p. 706.)

b. The elements of robbery under the relevant Maryland law and California law are identical Caldwell’s contention Maryland’s definiti on of robbery is more expansive than California’s is legally flawed. At the time Caldwell suffered his convictions in Maryland in 1977 and 1981, ro bbery in that jurisdiction was defined by common law as “‘the felonious taking and carrying away of the personal property of an other, from his person or in his presence, by violence, or by putting him in fear.’” ( Darby v. State (Md. App. 1968) 239 A.2d 584, 588; see Coles v. State (Md. 2003) 821 A.2d 389, 394 [prior to passage of legislation in October 2000, robbery in Maryland defined by common law].) Those elements identif ied in the Maryland common law are identical to each of the elements comprising a robber y offense in California. ( People v. Williams, supra, 57 Cal.4th at pp. 786-787.) The language Caldwe ll cites—“obtaining the service of another by force or threat of force”—was not part of Maryland law until October 2000 when the Maryland legislature revised s ection 486 of its criminal code to codify and augment the common law definition of robbery. ( Coles, at p. 394 [“[t]he revised section 486 retains robbery’s judicially determined meaning, and adds, ‘obtaining the service of another by force or threat of force’”]; Md. Ann. Code , Art. 27, § 486 (1957, 1996 Repl. Vol., 2000 Supp].) 5 Any notion that obtaining services by fo rce or fear was encompassed by the common law definition of robbery, applicable at the time of Caldwell’s convictions, is also dispelled by the language of Maryland ’s robbery statute codifying and augmenting

5 Prior to 2000, former section 486 of Ar ticle 27 of the Maryland Code stated the penalty for robbery without defining or identifyi ng the elements of that offense. It was substantially amended in 2000 to include the current elemen ts of a robbery offense and then repealed and recodified in 2002 without substantive chan ge as section 3-401 of the Maryland Code, Criminal Law. (M d. Acts 2002, ch. 26, § 1.)7 that common law definition: “‘Robbery’ re tains its judicially determined meaning except that : (1) robbery includes obtaining the serv ice of another by force or threat of force . . . .” (Md. Code, Crim . Law, § 3-401, ital. added; Coles v. State, supra, 821 A.2d at p. 394.) Had the common law definition of robbery already included the element of obtaining services of another, the word “except” would be nonsensical. (See People v.

Loeun (1997) 17 Cal.4th 1, 9 [in interpreting stat ute, “‘we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law’”]; Reno v. Baird (1998) 18 Cal.4th 640, 658.) Caldwell’s argument rests on the observati on that at least one Maryland court during the relevant period succinctly defi ned robbery as “larceny from the person, accompanied by violence or putting in fear.” ( Tyler v. State (Md. App. 1968) 245 A.2d 592, 595.) Because Maryland statutes at the time defined larceny to include theft of services, Caldwell asserts the common law de finition of robbery ne cessarily included theft of services by force or fear. Even a ssuming the truth of the premise—that robbery in Maryland was defined as larceny a ccomplished by force or fear—Caldwell’s interpretation is not only belied by Maryla nd’s Supreme Court’s pronouncements in Coles v. State, supra , 821 A.2d at page 394 and the language of Maryland’s current robbery statute, as we have ex plained, but also by the histor y and language of Maryland’s larceny laws. Under both Maryland common law and Maryland statute, theft of services is a separate offense not encompa ssed by the crime of larceny. Prior to the adoption in Maryland of a general theft statute in 1978 (effective July 1, 1979), larceny, like ro bbery, was defined in Maryla nd by the common law. The Maryland Supreme Court identified the elements of larceny as “the fraudulent taking and carrying away of a thing w ithout claim of right with the intention of converting it to a use other than that of the owner without his consent .” ( State v. Gover (Md. 1973) 298 A.2d 378, 381; accord, Brown v. State (Md. 1964) 204 A.2d 532, 53 6.) Thus, contrary to Caldwell’s contention, at the time Caldwell wa s convicted in 1977 larceny was limited to the theft of a tangible item a nd did not include theft of se rvices in its definition.8 Effective July 1, 1979, Ma ryland combined and codified the crime of larceny with other theft offenses accomplishe d without force or threat of force in a single statute prohibiting several enumerated theft crimes. (See former Md. Code, Art. 27, § 342;

Jones v. State (Md. 1985) 493 A. 2d 1062, 1063-1064.) 6 The inclusion of larceny among other theft crimes did not redefine larceny to broadly encompass theft of services; the statute merely combined larc eny and other offenses, such as “obtaining services by deception” to a list of gene ral theft offenses. (See Jones, at pp. 1063-1064 [“The General Assembly of Maryland, effec tive July 1, 1979, consolidated a number of theft-related offenses (not involving force or coercion) into a single newly created statutory offense known as theft” which includes “obtaining se rvices by deception”].) Thus, even under the general definition of robbery posited by Caldwell—larceny accompanied by force or fear—Caldwell’s prior Maryland convicti ons constituted serious felonies under

California law.

c. The trial court’s consideration of Cald well’s statements concerning his prior convictions, although error, was harmless Improperly focused on Maryland’s current robbery statute rather than the common law definition of robbery at the time Caldwell was convicted of the Maryland offenses, the trial court agreed with Caldwell that Maryland’s defi nition of robbery was more expansive than California’s but nonetheless found both prior offenses qualified as serious felonies. In reaching this conclusion, the c ourt relied on statements Caldwell had made to an investigator in the instant matter in which he revealed both prior Mary land offenses involved the unlawful taking of property, not services. Caldwell contends the court erred in considering this evidence because it was not part of his record of conviction in either offense. (See People v. Trujillo (2006) 40 Cal.4th 165, 178 [defendant’s post-plea statements to probation officer concerning prior offense are not part of record of conviction in prior case and co uld not be used to determin e whether prior felony was

6 Former Article 27, section 342 of the Ma ryland Code was rep ealed in 2002 and recodified as Maryland Code, Criminal Law, section 7-104 (general theft offenses). (See Md. Acts 2002, ch. 26, § 2.)9 serious or violent]; People v. Thoma (2007) 150 Cal.App.4th 1 096, 1098 [same].) In light of our holding the elem ents of robbery under the re levant Maryland law did not include theft of services by force or fear and thus did not differ from applicable California law, the court’s consideration of Caldwell’s post-conviction statements, while error, was plainly harmless. ( People v. Watson (1956) 46 Cal.2d 8 18, 836 [improper

consideration of evidence harm less when not reasonably prob able defendant would have

obtained a more favorable result absent the error].) In sum, Caldwell’s prior convictions in Maryland qualify as serious felonies within both the meaning of the three strikes law and section 667, subdivision (a)(1). The trial court did not err in sentencing Ca ldwell under both stat utory schemes.

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.