Filed 1/6/14 (Version first posted this date was incorrect and should be disregarded; this is correct version)

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 LEDBETTER,

 Defendant and Appellant.

2d Crim. No. B247709

(Super. Ct. No. F458833)

(San Luis Obispo County)

In this first impression case, we decline the People's request for remand to 

relitigate the truth of a prior conviction allegation. Appellant is lawfully sentenced to 

prison for a term of 39 years to life and, even if the People can prove the prior on 

retrial, no increase in sentence will result. We will not allow remand for an idle act. 

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 He 

admitted personally inflicting 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 a 1989 Tennessee conviction for 

robbery, a 1989 Tennessee conviction for aggravated assault, and a 2001 Oklahoma 

conviction for assault and battery with a dangerous weapon. The court also found true 

 

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

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 as a third striker, plus 3 years for 

the 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 punishment on the 1989 serious 

felony Tennessee conviction for aggravated assault. 

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). He does not challenge the 

validity of the true finding on the Oklahoma conviction. As to the Tennessee robbery 

conviction, we conclude that the evidence is sufficient. As to the Tennessee 

aggravated assault conviction, we accept the People's concession that the evidence is 

insufficient. We vacate the true finding on the Tennessee aggravated assault 

conviction and affirm in all other respects. As indicated, the vacating of this true 

finding does not affect appellant's 39-year-to-life prison sentence. We deny the 

People's request that the matter be remanded for the purpose of retrying the strike 

allegation as to the Tennessee aggravated assault conviction. 

Rules re Prior Conviction Allegations

"The People must prove all elements of [a prior conviction allegation] 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 
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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 

sustained its burden of proving the elements of the [prior conviction allegation] 

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

1083.)

Prior Tennessee Robbery Conviction

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 
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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.)

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. "[O]ver 100 years ago [the California 

Legislature] 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 
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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"].) 

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.) 

Prior Tennessee Aggravated Assault Conviction

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 
6

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. 

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.) 

Remand Vel Non

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, as to the 

Tennessee aggravated assault conviction, the People request that "the matter be 

remanded to the trial court for the limited purpose of determining whether appellant 

suffered a prior foreign conviction equivalent to a California 'strike' offense." The 

People argue that "where a reviewing court finds that insufficient evidence supports 

the 'strike' enhancement, the case should be remanded for retrial on the prior 'strike' 
7

conviction allegation because the double jeopardy bar does not apply to findings on

prior conviction allegations."

"[R]etrial of a strike allegation is permissible where [as here] 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.) Just because retrial is 

permissible does not mean the People have an unqualified right to retrial. We deny the 

People's request that the matter be remanded for the purpose of retrying the strike 

allegation as to the Tennessee aggravated assault conviction. If on remand the People 

were able to prove that this conviction qualifies as a strike, appellant's sentence of 39 

years to life would remain unchanged. The People correctly note that the Tennessee 

robbery and Oklahoma convictions qualify as strikes, and the present conviction of 

assault with a deadly weapon with personal infliction of great bodily injury constitutes

"strike three." Pursuant to section 667, subdivision (a), an additional five years is 

mandated for each of these prior serious felony convictions. The trial court stayed 

sentence on the section 667, subdivision (a) prior serious felony Tennessee aggravated 

assault conviction. Thus, the court's erroneous true findings on this conviction did not 

add one day to appellant's sentence. The People do not explain why they want an 

opportunity to retry the strike allegation when that allegation cannot affect the length 

of appellant's sentence.

It would therefore be an idle act and "a waste of ever-more-scarce judicial

resources" to remand the matter for the purpose of retrying the Tennessee aggravated 

assault strike allegation. (In re Z.N. (2009) 181 Cal.App.4th 282, 300.) Appellant's 

sentence would remain the same irrespective of the result of the retrial. "The law 

neither does nor requires idle acts." (Civ. Code, § 3532.)

Our decision not to remand the matter is consistent with People v. Alford (2010) 

180 Cal.App.4th 1463. There the defendant requested that the matter be remanded to 

the trial court for a new sentencing hearing to remedy a section 654 problem. The 

appellate court denied the request: "[Remand for this purpose] would mean pulling 
8

defendant out of his prison programming and busing him to [the trial court] for a new 

sentencing hearing that will not change his actual prison time. The futility and 

expense of such a course militates against it." (Id. at p. 1473.) The appellate court 

imposed the sentence that the trial court "undoubtedly . . . would have imposed" and 

stayed execution of that sentence. (Ibid.) The appellate court noted that it was 

exercising its "authority to modify the judgment" pursuant to section 1260. (Ibid.)

Section 1260 provides: "The court may reverse, affirm, or modify a judgment 

or order appealed from, or reduce the degree of the offense or attempted offense or the 

punishment imposed, and may set aside, affirm, or modify any or all of the 

proceedings subsequent to, or dependent upon, such judgment or order, and may, if 

proper, order a new trial and may, if proper, remand the cause to the trial court for 

such further proceedings as may be just under the circumstances." The power to order 

remand "for such further proceedings as may be just under the circumstances," in our 

view, permits us to not remand to secure the same goal, i.e., justice under the 

circumstances. 

Here, we are exercising our authority to preclude retrial because "[t]he futility 

and expense" of remand for the purpose of retrying the Tennessee aggravated assault 

strike allegation "militates against it." (People v. Alford, supra, 180 Cal.App.4th at p. 

1473; see also People v. Moore (2006) 39 Cal.4th 168, 176 ["Section 1260 evinces a 

'legislative concern with unnecessary retrials where something less drastic will do' "].)

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. In all other respects the 

judgment, including the state prison sentence of 39 years to life, is affirmed. The trial 

court is directed to file an amended abstract of judgment that deletes any reference to
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the Tennessee aggravated assault conviction. The trial court is further directed to

transmit a certified copy of the amended abstract of judgment to the Department of 

Corrections and Rehabilitation.

CERTIFIED FOR PUBLICATION. 

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.
10

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.