Filed 1/6/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

TOMMY SHERRELL LEADBETTER,

 Defendant and Appellant.

2d Crim. No. B247709

(Super. Ct. No. F458833)

(San Luis Obispo County)

Tommy Sherrell Ledbetter appeals from the judgment entered after his no 

contest plea to assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)1

Appellant admitted that he had personally inflicted great bodily injury upon the victim. 

(§ 12022.7, subd. (a).) The trial court found true allegations of three prior serious or 

violent felony convictions within the meaning of California's "Three Strikes" law. (§§ 

667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The "strikes" are 1989 Tennessee 

convictions for robbery and aggravated assault and a 2001 Oklahoma conviction for 

assault and battery with a dangerous weapon. The court also found true allegations of 

three prior serious felony convictions (§ 667, subd. (a)) and two prior prison terms. 

(§ 667.5, subd. (b).) Appellant was sentenced to prison for 39 years to life: 25 years to 

life for assault with a deadly weapon and the three prior strikes, plus 3 years for the 

 

1 All statutory references are to the Penal Code unless otherwise stated.
2

great bodily injury enhancement, plus 10 years for two prior serious felony convictions

(the Tennessee robbery conviction and the Oklahoma conviction), plus one year for 

one prior prison term. The court stayed sentence on the remaining prior conviction 

enhancements. 

Appellant contends that the evidence is insufficient to prove that the two prior 

Tennessee convictions are serious or violent felony convictions within the meaning of 

the Three Strikes law and section 667, subdivision (a). We conclude that the evidence 

is sufficient as to the Tennessee robbery conviction, but insufficient as to the 

Tennessee aggravated assault conviction. We remand for resentencing or, at the 

prosecutor's election, retrial of the strike and section 667, subdivision (a) allegations as 

to the Tennessee aggravated assault conviction. 

Determination of Truth of Prior Conviction Allegations: 

Legal Principles and Standard of Review

"The People must prove all elements of an alleged sentence enhancement 

beyond a reasonable doubt. [Citation.] Where . . . the mere fact of conviction under a 

particular statute does not prove the offense was a serious felony, otherwise admissible 

evidence from the entire record of the conviction may be examined to resolve the 

issue. [Citations.] This rule applies equally to California convictions and to those 

from foreign jurisdictions. [Citations.]" (People v. Miles (2008) 43 Cal.4th 1074, 

1082.) "The normal rules of hearsay generally apply to evidence admitted as part of 

the record of conviction to show the conduct underlying the conviction. [Citation.]" 

(People v. Woodell (1998) 17 Cal.4th 448, 458.) "Thus, a statement in the record of 

conviction that is offered to prove the truth of the matter stated must fall within an 

exception to the hearsay rule. [Citation.]" (People v. Thoma (2007) 150 Cal.App.4th 

1096, 1101.) "On review, we examine the record in the light most favorable to the 

judgment to ascertain whether it is supported by substantial evidence. In other words, 

we determine whether a rational trier of fact could have found that the prosecution 
3

sustained its burden of proving the elements of the sentence enhancement beyond a 

reasonable doubt. [Citations.]" (People v. Miles, supra, 43 Cal.4th at p. 1083.)

Prior Tennessee Robbery Conviction: Sufficiency of the Evidence

For the prior 1989 Tennessee robbery conviction, the record of conviction 

includes an indictment, a document signed by appellant and entitled "Petition to Enter 

Plea of Guilty," and a judgment. The indictment consists of two counts: the first count 

alleges robbery and the second count alleges aggravated assault. The robbery count 

states that appellant and a codefendant assaulted Steven Joiner, put him "in fear and 

danger of his life, . . . and violently did steal, take and carry away from [his] person 

and against [his] will" two pizzas of the "value of approximately $20.00." The 

judgment states that appellant pleaded guilty to "the offense of simple robbery." 

Appellant argues that, because the judgment does not state that he pleaded 

guilty to the offense of robbery as charged in the indictment, the allegations in the 

indictment are inadmissible hearsay. Appellant waived this issue because he failed to

raise it in the trial court. (Evid. Code, § 353, subd. (a).) Assuming, for purposes of 

discussion, that there was no waiver, appellant is wrong on the merits. "[T]he trier of 

fact may draw reasonable inferences from the record presented." (People v. Miles, 

supra, 43 Cal.4th at p. 1083.) Based on appellant's "Petition to Enter Plea of Guilty," 

the trial court could reasonably infer that he had admitted the allegations of the 

indictment. In the petition appellant stated: "I received a copy of the indictment or 

information, which states the charge(s) against me, before I was required to plead to 

the charge(s). I have read and discussed the indictment or information with my 

attorney." (Italics added.) "My attorney has explained that the Court will consider 

each count of each indictment or information to which I plead 'GUILTY' as a separate 

offense . . . ." (Italics added.) Thus, appellant impliedly pleaded guilty to robbery as 

charged in the indictment. The indictment, therefore, is admissible under the 

admission exception to the hearsay rule. (Evid. Code, § 1220.)
4

In any event, the Tennessee judgment alone is sufficient to show that appellant 

was convicted of a serious or violent felony. The judgment shows that in 1989 he 

pleaded guilty to robbery. At that time in Tennessee, robbery was defined as "the 

felonious and forcible taking from the person of another, goods or money of any value, 

by violence or putting the person in fear." (Tenn. Code § 39-2-501, subd. (a).) In 

California robbery is defined as "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." (§ 211.) These two statutory definitions are 

essentially identical, except that the Tennessee definition is more restrictive because it 

requires a "taking from the person of another," while the California definition requires 

a taking "from his person or immediate presence." Thus, the mere fact of the 1989 

Tennessee robbery conviction proves both the strike and prior serious felony 

allegations. Robbery is both a violent and serious felony for purposes of the Three 

Strikes Law and section 667, subdivision (a). (§§ 667, subd. (d)(1), 1170.12, subd. 

(b)(1), 667.5, subd. (c)(9)), 1192.7, subd. (c)(19).)

Appellant maintains that the Tennessee robbery conviction does not qualify as a 

strike because, at the time of his conviction in 1989, California recognized a claim-ofright defense to robbery but Tennessee did not. The California ”Legislature over 100 

years ago codified in the current robbery statute the common law recognition that a 

claim-of-right defense can negate the animus furandi element of robbery where the 

defendant is seeking to regain specific property in which he in good faith believes he 

has a bona fide claim of ownership or title." (People v. Tufunga (1999) 21 Cal.4th 

935, 950.) The People concede that Tennessee did not recognize a claim-of-right 

defense. (See Elliott v. State (1970) 2 Tenn.Crim.App. 418, 454 S.W.2d 187, 

188 ["even if the property the defendant alleged was stolen from him had been the 

very watch and ring later taken [by the defendant] from the person of the victim, the 

jury would still have been justified in finding the crime of robbery was perpetrated"].) 
5

Appellant contends that, based on the record of conviction, it cannot be 

determined whether he took the victim's two pizzas under a claim of right and, 

therefore, whether he would have been guilty of robbery pursuant to California law.

The contention lacks merit. The indictment alleges that appellant "violently did steal" 

the two pizzas. Appellant impliedly admitted this allegation when he pleaded guilty. 

Appellant could not have stolen the two pizzas if he had believed in good faith that the 

pizzas were his personal property. "[T]o steal means 'to be a thief; practice theft.' 

[Citations.]" (People v. Parson (2008) 44 Cal.4th 332, 352.) "The intent to steal . . . is 

the intent, without a good faith claim of right, to permanently deprive the owner of 

possession. [Citation.]" (People v. Davis (1998) 19 Cal.4th 301, 305, italics added.) 

"[O]ne cannot feloniously intend to steal one's own property." (People v. Tufunga, 

supra, 21 Cal.4th at p. 953, fn. 5.) 

Appellant would not prevail even if the indictment had not alleged that he had 

stolen the pizzas. A prior conviction from another jurisdiction qualifies as a serious or 

violent felony if the prior conviction "is for an offense that includes all of the elements 

of a particular violent felony as defined in subdivision (c) of Section 667.5 or serious 

felony as defined in subdivision (c) of Section 1192.7." (§§ 667, subd. (d)(2), 

1170.12, subd. (b)(2).) In California the absence of a claim of right defense is not an 

element of robbery. (People v. Kelley (1990) 220 Cal.App.3d 1358, 1366 ["The 

elements of robbery are (1) a taking of personal property, (2) from the person or 

immediate presence of another, (3) through the use of force or fear, (4) with an intent 

to permanently deprive the owner of his property"].) Since the 1989 Tennessee 

robbery conviction includes all of the elements of robbery under California law, it 

qualifies as a conviction for a serious or violent felony.
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Prior Tennessee Aggravated Assault Conviction: 

Sufficiency of the Evidence

For the prior Tennessee aggravated assault conviction, the record of conviction 

includes the indictment (the robbery is count 1 and the aggravated assault is count 2), 

appellant's signed petition to enter a guilty plea, and the judgment, which states that he

pleaded guilty to aggravated assault. The People concede that the evidence is 

insufficient because the record of conviction does not show that appellant personally 

inflicted great bodily injury upon the victim. 

We accept the concession. The aggravated assault charge alleges that appellant 

and the same codefendant named in the robbery charge "did cause serious bodily 

injury to Steven Joiner willfully, knowingly or recklessly under circumstances 

manifesting extreme indifference to the value of human life." In California aggravated 

assault (§ 245, subd. (a)) qualifies as a serious felony only if the defendant personally 

inflicted great bodily injury or personally used a firearm or a dangerous or deadly 

weapon. (§ 1192.7, subd. (c)(8), (23); People v. Delgado (2008) 43 Cal.4th 1059, 

1067.) Aggravated assault qualifies as a violent felony only if the defendant 

personally inflicted great bodily injury or personally used a firearm. (§ 667.5, subd. 

(c)(8).) The indictment does not allege that appellant personally used a firearm or a 

dangerous or deadly weapon. The indictment alleges that appellant and his

codefendant inflicted "serious bodily injury" upon the victim, but it does not indicate 

whether the injury was personally inflicted by appellant. The codefendant could have 

been the actual perpetrator of the assault, with appellant acting as an aider and abettor.

The People also concede that the record of conviction is insufficient to prove 

the requisite intent for aggravated assault under California law because the Tennessee 

conviction may have been based on merely reckless conduct. At the time of 

appellant's 1989 conviction, under Tennessee law a person could be convicted of 

aggravated assault if he had "recklessly" caused serious bodily injury "under 

circumstances manifesting extreme indifference to the value of human life." (Tenn. 
7

Code § 39-2-101, subd. (b)(1).) The Tennessee indictment alleges that appellant and 

his codefendant "willfully, knowingly or recklessly" caused serious bodily injury to 

the victim. In California mere recklessness is insufficient to constitute an assault. 

(People v. Williams (2001) 26 Cal.4th 779, 788.) 

We do not accept the People's concession that the record of conviction is 

insufficient to prove the requisite intent for aggravated assault under California law. 

The trial court was entitled to consider the Tennessee indictment's aggravated assault 

charge together with the robbery charge. (People v. Miles, supra, 43 Cal.4th at p.

1082 [admissible evidence from entire record of conviction may be considered].) Both 

offenses were committed by the same persons against the same victim on the same 

date. The trial court could reasonably infer that the aggravated assault was not merely 

a reckless act but was intentionally committed for the purpose of facilitating the 

robbery. The robbery charge alleges that appellant "unlawfully and feloniously did 

make an assault upon" the victim. Accordingly, the record of conviction sufficiently 

establishes the requisite intent for aggravated assault under California law.

Remand

The People "note[] that . . . appellant's Tennessee robbery conviction, along 

with appellant's Oklahoma [conviction for assault and battery with a dangerous 

weapon], would support his current three strike sentence." Nevertheless, the People 

request that the matter be remanded to the trial court for retrial of the strike allegation 

as to the 1989 Tennessee aggravated assault conviction. The People are entitled to 

remand for this purpose: "[R]etrial of a strike allegation is permissible where a trier of 

fact finds the allegation to be true, but an appellate court reverses that finding for 

insufficient evidence." (People v. Barragan (2004) 32 Cal.4th 236, 239.)
8

Disposition

The finding that appellant's 1989 Tennessee aggravated assault conviction 

constitutes a serious or violent felony conviction within the meaning of the Three 

Strikes law and section 667, subdivision (a) is vacated. The matter is remanded to the 

trial court for resentencing or, at the prosecutor's election, retrial of the strike and 

section 667, subdivision (a) allegations as to the prior aggravated assault conviction. 

In all other respects, the judgment is affirmed. 

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.
9

Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Mark R. Feeser, 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, Senior Assistant Attorney General, Kenneth C. 

Byrne, Supervising Deputy Attorney General, Seth P. McCutcheon, Deputy Attorney 

General, for Plaintiff and Respondent.