Filed 9/15/15 P. v. Turner CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. TERRY B. TURNER, Defendant and Appellant. A142074
(San Francisco County Super. Ct. No. SCN221345)

In this appeal, we are asked to decide whether the prosecution established beyond
a reasonable doubt appellant was previously convicted of a serious felony pursuant to
Penal Code section 667 , subdivision (a )

. 1 The purported prior felony offense is first degree burglary, the burglary of a n inhabited dwelling

. (§ 459.) If the prior offense was proven beyond a reasonable doubt, appellant’s commitment to state prison for an additional five years, imposed by t he trial court, would be appropriate. We conclude the record supports the determination by the trial court the prior offense was a serious felony
and affirm.
STATEMENT OF THE CASE On March 7, 2014, the d istrict a ttorney filed a second amended informati on charging appellant Turner with several felonies. Counts o ne and t wo charged appellant
with violations of section 422 (terrorist threats). Count t hree charge d a violation of

1 Unless otherwise stated, all statutory references are to the Penal Code.2

section 273.5, subdivision (a) (infliction of corporal punishment on a cohabit ant). Counts
f our, f ive, s ix, s even and n ine charged violations of section 245, subdivision (a)(4) (aggravated assault). Count e ight charged a violation of sec tion 236 (false imprisonment). The amended information also alleged appellant suffered a prior strike conviction pursuant to sections 667, subdivisions (d)

- (e), and 1170.12, subdivisions (b)

- (c), and a prior serious felony conviction under section 667, subdivision (a)(1). The
informati on further alleged appellant had three prior prison terms under section 667.5, subdivision (b).
On March 20 , 2014, the jury acquitted ap pellant of c ount t wo and c ount n ine

. The jury convicted appellant of all the remaining counts. Following defendant’ s waiver of jury trial on all of the prior conviction

- related allegations, i n a bifurcated benc h trial the
court found true two prior prison term allegations, as well as the prior strike allegation and the prior serious felony allegation. The court gran ted appellant’s motion to dismiss the prior strike allegation. The court then sentenced appellant to state prison for a determinate term of eight years eight
months. Appellant filed a timely notice of appeal.
ANALYSIS
A. Introduction.
We do not su mmarize the facts supporting the jury’s verdict in this case because
the sole issue is the five

- year enhancement prior imposed by the trial court. In this a ppeal appellant claims the five

- year enhancement imposed by the trial court must be reversed
becaus e the prosecution failed to establish by proof beyond a reasonable doubt appellant suffered a serious felony prior.
B. Factual Background. The second amended information in this case alleged appellant was “previously
convicted of the c rime of FIRST DEGREE BURGLARY

- RESIDENTIAL, violating3

section 459 of the Penal Code , a Felony, on or about the 10 th day of October, 1996, in the Superior Court of Cali fornia, County of Sacramento.” The information also alleged this offense was a prior serious felony con viction, within the meaning of section 667, subdivision (a)(1). At the bench trial, the district attorney introduced exhibits Nos. 12
and 14 to prove the allegation.
Exhibit No. 14 is a collection of documents. The materials show that on September 17, 1996, the prosecutor in Sacramento County filed a complaint against appellant and two other persons in case No. 96F07374. Count o ne of the complaint alleged appellant and his codefendants received stolen property, violating section 496,
subdivision (a ). Count t wo alleged appellant and another codefendant committed the
crime of bu rglary, violating section 459. The complaint on this count indicated appellant burglarized “an inhabited dwelling house and trai ler coach and inhabited portion of [ the ]
build ing.” This was alleged to be a “serious felony” pursuant to section 1192.7, subdivision (c)( 1 8), an allegation that exclusively applies to first degree burglary.
A court minute order dated October 10, 1996, indicates appellant entered a no contest plea to c ount t wo of the complain t, a violation of section 459. This minute order

notes specific ally the offense pled to was a serious felony within the meaning of Penal
Code secti on 1192.7, subdivision (c)(18), i.e. , fi rst degree burglary. In his plea inqui ry, the trial court told appellant he could be sentenced to two, four, or six years in state prison, the range of time for first degree burglary.
A sentencing minute order dated November 7, 1996, states appellant was convicted of “PC 459 FEL 1 Nolo conte ndere.” Presumably, the reference to “FEL 1” suggests a felony first degree burglary instead of second degree burglary , which can be either a misdemeanor or felony.
A minute order da t ed April 28, 1998, states appellant admitted to a probation
violation in case No. 96F07374 (the case discussed above) after sustaining a new
conviction in case No. 97F04444. Appellant was sentenced to “MT 2 yrs SP c/c to4

97F04444.” During the bench trial on the enhancement prior allegations in this instant case, the distr ict attorney “interpreted” appellant’s sentence in case No. 96F07374 to
mean “ [ m ] idterm two years state prison concurrent.”
Trial exhibit No. 12 was appellant’s rap sheet. Contained in the document were conflicting entries on the 1996 burglary prior in case No. 96F07374. The entry at page 3 shows appellant was convicted of first degree burglary in that case and sentenced to two years in state prison on April 28, 1998. Nevertheless, at page 4 of the exhibit, there is an entry for appellant’s conviction in case No. 97F04444. That entry shows a two

- year principal term was imposed in case No. 97F04444 , as well as a two

- year subordinate term
for a second degree burglary c onviction in case No. 96F07374.
C. Standard of Review. A prior conviction must be proved at trial beyond a reasonable doubt, unless admitted by the accused. (See § 1025, subds. (a), (b); People v. Miles (2008) 43 Cal.4 th 1074, 1082. ) When the statu te underlying the prior offense does not specifically state the crime is a serious felony, admissible evidence from the complete record of the particular conviction may be e xamined to resolve this issue. ( Ibid

. ) This evidence often wi ll
include certified documents from the previous court proceeding and prison commitment. ( Ibid. )
Under People v. Johnson (1980) 26 Cal.3d 557, 576, the appellate court will focus in this instance on whether substantial evidence supports the determinations made by the
trial court below. We must ask whether any rational trier of fact would reach the same conclusion the fact finder below (here the trial court) reached after reviewing the evidence on the matter submitted by each side, in the light most favorable to the prevaili ng party. ( People v. Crittenden (1994) 9 Cal.4 th 83, 139. ) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible
of two interpretations, one of which suggests guilt and the other innocence [cit ations] , it
is the [fact finder] , not the appellate court [,] which must be convinced of the defendant’s5

guilt beyond a reasonable doubt. ‘ “ If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” ( People v. Bean (1988) 46 Cal.3d 919, 932

– 933. )
D. Analysis. Section 667 permits a sentencing enhancement for any person who i s convicted of a serious felony and who previously has been convicted of a serious felony. Under
section 667, subdivision (a), an additional term of five years is imposed. Under subdivision (a)(4), a serious felony means a felony listed in subdivision (c ) of s ection
1192.7. A violation of section 422, criminal threats, is a serious felony (§ 1192.7,
subd. (c)(38)), as is “any burglary of the first degree” (§ 1192.7, subd. (c)(18) )

. T he record indicates that in 1996, appellant was convicted of first degr ee burglary in the County of Sacramento . The minut e order indicates he entered a no contest plea to count 2, alleged in the complaint to be a violation of section 459 , burglary of an inhabited dwelling house . This plea was entered in case No. 96F07374, w hich also alleged th e offense was a serious felony within the meaning of section 1192.7, subdivision (c)(18),
the fi rst degree burglary subsection. Additionally, the court advised appellant his sentencing range was from two to six years in state prison, t he appropriate range for first degree burglary. 2 (§ 461, subd. (a).) We conclude these entries and remarks establish appellant in fact entered a plea to first degree burglary, a serious felony.
T he minute order dated November 7, 1996, corroborates the nature of the plea. That document indicates appellant was convicted of “PC 459 FEL 1 Nolo contendere.” If

2 If the offense was for felony second degree burglary, in 1996 the sentence range would have been 16 months, two years or three years in prison. ( Former § 461, as amended in 1978 ( Stats. 1978, ch. 579, § 24, p. 1985; former section 18, as amended in 1976 (Stats. 1976, ch. 1139, § 98, p. 5089.)6

the offense was second degree burglary, we would expect the entry to state “PC 459 FEL 2 Nolo contendere” or “PC 459 MIS.”
We mu st acknowledge the inconsistent entries in the appellant’s rap sheet manifested by e xhibit No. 12. However, this document was not made at the time of sentencing for the offense deemed a “serious felony.” The rap sheet does not reflect the sentencing opti ons stated by the trial court who took the particular plea found to be a first degree burglary by the trial court below . Nor is the rap sheet contemporaneous with the clerk’s minute order entries at the time of both plea and sentence. The rap sheet
incon siste ncies reflect at best a scrivener’s error , with the first entry consistent with other documents and the second entry uniquely different to an otherwise consistent chronicle of

events. With this record, the conclusion of the sentencing court and the fact finder here will not be disturbed. The record supports its finding in this regard.
DISPOSITION The judgment is affirmed.7 _________________________ DONDERO , J.

We concur:

_________________________ HUMES, P. J.

_________________________ MARGULIES, J.8

A142074