Filed 1/23/14 P. v. Caldwell CA2/7 

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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 Superior 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, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, James William Bilderback II, and 

Alene M. Games, Deputy Attorneys General, 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 prior 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 insufficient evidence his prior robbery convictions in Maryland 

qualified as serious felonies in California. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

Caldwell was charged in an amended information with three counts of robbery 

(Pen. Code, § 211.)1

 It was specially alleged Caldwell 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 serious felony within the meaning of section 

667, subdivision (a)(1). Caldwell pleaded not guilty and denied the special allegations. 

 At trial the People presented evidence 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 Caldwell’s wrist in an 

unsuccessful effort to prevent him from taking 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 employees 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 had pleaded guilty to robbery 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 pleaded guilty to robbery with 

 1

 Statutory references are to the Penal 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 32

 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)) and sentenced Caldwell to an aggregate state 

prison term of 18 years.3

DISCUSSION 

 1. Governing Law 

A defendant who has suffered a prior conviction for a serious or violent felony is 

subject to sentencing under the three strikes 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 felony is subject to a mandatory five-year 

sentence enhancement for each prior serious felony conviction that was brought and tried 

separately. (§ 667, subd. (a)(1).) Prior convictions from other jurisdictions may qualify 

for similar treatment provided certain requirements are met: Specifically, a prior out-ofstate felony conviction may qualify as a strike if the foreign offense includes “all of the 

elements” of the particular felony in California 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 Caldwell with a robbery on December 4, 

2010. The jury acquitted Caldwell 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 five-year enhancements for each prior serious 

felony conviction found by the jury to be true. (§§ 667, subd. (a)(1), 1385, 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, subdivision (a), five-year enhancements when 

only one prior serious felony conviction was specifically alleged under that code section. 

(Both prior Maryland convictions were alleged in the information to constitute serious 

felonies under the three strikes law.) 
4

552-553.) Similarly, a prior felony conviction from another jurisdiction may be used to 

support a sentence enhancement under section 667, 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-state 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 must involve conduct that would qualify as a 

serious” or in the case of the three strikes law, violent, felony in California]; People v. 

Avery (2002) 27 Cal.4th 49, 52 [same].) In determining whether 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 record does not 

disclose the facts of the offense actually committed, the court must presume the prior 

conviction was for the least offense punishable 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 and a violent felony in California. (See 

§§ 1192.7, subd. (c)(19) [serious felony]; 667.5, subd. (c)(9) [violent felony].) In 

asserting his prior Maryland convictions for robbery with a dangerous weapon do not 

qualify as serious or violent felonies for purposes of the three strikes law or as serious 

felonies for purposes of section 667, subdivision (a)(1), Caldwell asserts the elements of 

robbery under Maryland law are more expansive 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 presence, 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 underlying convictions were introduced into 
5

evidence for the jury to consider, 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 convictions 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 qualified as strikes or sentencing enhancements. 

The jury found Caldwell had twice been convicted in Maryland of robbery 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 Maryland 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 the offense in California and in the foreign 

jurisdiction, is a legal question 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 whether prior out-of-state conviction qualified 

as serious felony is “a legal determination of the nature of defendant’s prior convictions

as established by the record of the prior criminal proceedings”; “[t]his is an inquiry that is 

quite different from the resolution of the issues submitted to a jury, and is one more 

typically and appropriately undertaken 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. [¶] The People allege that the defendant has been 

convicted of: [¶] 1. A violation of Criminal Code section 3-401, Robbery with a Deadly 

Weapon, on 11/9/77, in the State of Maryland, in Case Number 17709128. [¶] And [¶] 

2. A violation of Criminal Code section 3-401, Robbery with a Deadly Weapon, on 

1/26/81, in the State of Maryland, in Case Number 28100215. [¶] Consider the evidence 

presented on this allegation only when deciding whether the 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 currently charged or for any 

other purpose. [¶] You must consider each alleged conviction separately. The People 

have the burden of proving each alleged conviction beyond a reasonable doubt. . . .” 
6

 Here, prior to submitting evidence of Caldwell’s prior convictions to the jury, the 

court found the offenses, if they had been committed, qualified as violent 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 definition of robbery is more expansive than 

California’s is legally flawed. At the time Caldwell suffered his convictions in Maryland 

in 1977 and 1981, robbery in that jurisdiction was defined by common law as “‘the 

felonious taking and carrying away of the personal property of another, 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 identified in the Maryland common law are identical to each of 

the elements comprising a robbery offense in California. (People v. Williams, supra, 57 

Cal.4th at pp. 786-787.) The language Caldwell 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 section 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 force 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 Article 27 of the Maryland Code stated the 

penalty for robbery without defining or identifying the elements of that offense. It was 

substantially amended in 2000 to include the current elements of a robbery offense and 

then repealed and recodified in 2002 without substantive change as section 3-401 of the 

Maryland Code, Criminal Law. (Md. Acts 2002, ch. 26, § 1.) 
7

that common law definition: “‘Robbery’ retains its judicially determined meaning except 

that: (1) robbery includes obtaining the service 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 statute, “‘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 observation that at least one Maryland court 

during the relevant period succinctly defined 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 definition of robbery necessarily included 

theft of services by force or fear. Even assuming the truth of the premise—that robbery 

in Maryland was defined as larceny accomplished by force or fear—Caldwell’s 

interpretation is not only belied by Maryland’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 explained, but also by the history and language of Maryland’s 

larceny laws. Under both Maryland common law and Maryland statute, theft of services 

is a separate offense not encompassed by the crime of larceny. 

 Prior to the adoption in Maryland of a general theft statute in 1978 (effective 

July 1, 1979), larceny, like robbery, was defined in Maryland by the common law. The 

Maryland Supreme Court identified the elements of larceny as “the fraudulent taking and 

carrying away of a thing without 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, 536.) Thus, contrary to 

Caldwell’s contention, at the time Caldwell was convicted in 1977 larceny was limited to 

the theft of a tangible item and did not include theft of services in its definition. 
8

 Effective July 1, 1979, Maryland combined and codified the crime of larceny with 

other theft offenses accomplished 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 larceny and other offenses, such as “obtaining services by 

deception” to a list of general theft offenses. (See Jones, at pp. 1063-1064 [“The General 

Assembly of Maryland, effective 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 services by deception”].) Thus, even under 

the general definition of robbery posited by Caldwell—larceny accompanied by force or 

fear—Caldwell’s prior Maryland convictions constituted serious felonies under 

California law. 

c. The trial court’s consideration of Caldwell’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 definition of robbery was more 

expansive than California’s but nonetheless found both prior offenses qualified as serious 

felonies. In reaching this conclusion, the court relied on statements Caldwell had made to 

an investigator in the instant matter in which he revealed both prior Maryland 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 could not be used to determine whether prior felony was 

 6

 Former Article 27, section 342 of the Maryland Code was repealed 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 1096, 1098 [same].) In 

light of our holding the elements of robbery under the relevant 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 818, 836 [improper 

consideration of evidence harmless when not reasonably probable 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 Caldwell under both statutory schemes. 

DISPOSITION 

The judgment is affirmed. 

 PERLUSS, P. J. 

 We concur: 

 WOODS, J. 

 ZELON, J.