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Filed 3/10/16 P. v. Salinas CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION 2

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTHUR R. SALINAS,

Defendants and Appellant.

 A144491

 (San Francisco County

 Super. Ct. No. SCN 222179)

INTRODUCTION

The sole issue raised by defendant Arthur R. Salinas in this appeal is that the trial 

court erred in finding his prior Texas robbery conviction qualified as a serious or violent 

felony under the Three Strikes law. The Attorney General agrees that the evidence was 

insufficient to make that finding. We agree, and will remand the case to the trial court for 

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Because this case concerns only one aspect of the court trial on prior convictions, 

we describe the rest of the facts only briefly.

By information filed May 14, 2014, defendant was charged with forcible rape, 

forcible oral copulation, and failure to register as a sex offender, along with special 

allegations and many prior strike convictions, serious felony convictions, and prison 

priors. A jury found him guilty of failing to register as a sex offender (Pen. Code, § 290, 
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subd. (b))1(count 3), and not guilty of forcible oral copulation and its lesser included 

offense. The jury was unable to reach a verdict on the forcible rape charge, and a mistrial 

was declared on that count, which was later dismissed at the request of the prosecution. 

On October 21, 2014, the prosecution filed a first amended information alleging 

the same offenses charged in the May 14, 2014, information, but altering the prior

conviction allegations. A court trial on the prior convictions was held on October 21, 

2014. 

At the court trial on the defendant’s prior convictions, the prosecution moved into 

evidence as People’s Exhibit 28 the grand jury indictment, judgment, and waiver of rights 

form from defendant’s Texas conviction for robbery in 1975.2 This was the extent of the 

evidence on the 1975 Texas robbery conviction. Defendant argued that the Texas 

robbery conviction did not qualify as a robbery in California because Texas robbery law 

did not require that property be taken from the victim’s person or immediate presence or 

that the property be carried away. 

The trial court found that the prior strike allegation based on defendant’s Texas 

robbery conviction was true, and that this conviction constituted a strike under California 

law. 

The trial court also found true prior strike and prior prison allegations based on 

defendant’s convictions for rape and for unauthorized use of a motor vehicle, both in 

Texas. The findings as to these convictions are not at issue in this appeal, and we do not 

address them further.

On March 2, 2015, defendant was sentenced to serve 27 years to life in prison. 

 

1 All further undesignated statutory references are to the Penal Code.

2

The prosecution and the trial court in the matter before us also referred to 

People’s Exhibit 26, which consists of the trial, punishment and sentencing transcript for 

defendant’s Texas rape conviction in 1982. At the “punishment phase” of defendant’s 

rape trial in Texas, the prosecutor referred to defendant’s prior 1975 Texas robbery 

conviction, and stated “that robbery, physically taking someone’s money by use of force, 

is a violent crime.” But as the Attorney General concedes, this statement cannot be 

considered part of the record of conviction for the Texas robbery. 
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Defendant timely appealed.

DISCUSSION

Both defendant and the Attorney General are in agreement that there was 

insufficient evidence to support the trial court’s finding that the Texas robbery conviction 

qualifies as a California strike prior.

A prior conviction in another jurisdiction qualifies as a strike for purposes of 

California’s Three Strikes sentencing law if it includes all the elements of a crime that is 

a serious or violent felony in California. (§ 667, subd. (d)(2); People v. Woodell (1998) 

17 Cal.4th 448, 453.) It is undisputed that robbery is a “ ‘serious felony’ ” under section 

1192.7, subdivision (c)(19) as well as a “ ‘violent felony’ ” as described in section 667.5, 

subdivision (c)(9).

“The prosecution has the burden of proving beyond a reasonable doubt each 

element of a prior conviction used to enhance a defendant’s sentence.” (People v. 

Rodriguez (2004) 122 Cal.App.4th 121, 128) (Rodriguez).) As our Supreme Court 

explained in People v. Guerrero (1988) 44 Cal.3d 343, 354-355, in considering section

667 enhancements involving out-of-state convictions, “the court may look to the entire 

record of the conviction to determine the substance of the prior foreign conviction; but 

when the record does not disclose any of the facts of the offense actually committed, the 

court will presume that the prior conviction was for the least offense punishable under the 

foreign law.”

The indictment and judgment are part of the record of conviction. (See People v. 

McMahan (1992) 3 Cal.App.4th 740, 745-746 [indictment]; People v. Miles (2008) 43 

Cal.4th 1074, 1082.) We review the evidence to determine whether substantial evidence 

supports the trial court’s finding. (Rodriguez, supra, 122 Cal.App.4th at p. 128.)

The crime of robbery in California 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.) “California courts have 

construed the taking element of robbery to include two necessary elements: caption or 
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gaining possession of the victim’s property, and asportation or carrying away the loot.” 

(People v. Lopez (2003) 31 Cal.4th 1051, 1056.) 

The parties are in agreement that asportation is not a required element of robbery 

under Texas law,

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and another court in this state has so held. (Rodriguez, supra, 122 

Cal.App.4th at p. 130.4) “In Texas, ‘actual commission of the offense of theft is not 

prerequisite to the commission of a robbery[.]’ ” (Ibid.) Further, Texas robbery law, 

unlike California, does not require the property to be taken from a victim’s possession. 

(Ibid.; cf. People v. Nguyen (2000) 24 Cal.4th 756, 764 [robbery victim must be in actual 

or constructive possession of property taken].)

The trial court in the matter before us considered the indictment, the judgment and 

waiver of trial rights from defendant’s 1975 Texas robbery conviction. The only 

evidence of the circumstances of the 1975 robbery was the following statement in the 

indictment: that defendant “did then and there unlawfully while in the course of 

 

3 We granted the Attorney General’s unopposed Request for Judicial Notice of 

Texas Penal Code sections 29.01, 29.02, 31.01 and 31.03 as effective in 1974 when 

defendant was charged with robbery in Texas. These statutes are relevant to defendant’s 

claim that his Texas robbery conviction was not a serious or violent felony under 

California law. 

Texas Penal Code section 29.02, subdivision (a) provided that a person perpetrates 

robbery “if, in the course of committing theft as defined in Chapter 31 of this code and 

with intent to obtain or maintain control of the property, he [¶] (1) intentionally, 

knowingly, or recklessly causes bodily injury to another; or (2) intentionally or 

knowingly threatens or places another in fear of imminent bodily injury or death.” 

“ ‘In the course of committing theft’ means conduct that occurs in an attempt to 

commit, during the commission, or in the immediate flight after the attempt or 

commission of theft.” (Texas Pen. Code, § 29.01, subd. (1).)

“Theft” was defined as “an offense if, with intent to deprive the owner of property: 

[¶] (1) [the defendant] obtains the property unlawfully; or [¶] (2) [the defendant] 

exercises control over the property, other than real property, unlawfully.” (Texas Pen. 

Code, § 31.03, subd. (a).)

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 Rodriguez considered Texas robbery law as it existed in 1975. The Attorney 

General states (and defendant does not dispute) that Texas robbery law did not change 

between 1974 and 1975. In fact, both parties rely on Rodriguez in urging that the trial 

court in this case erred. 
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committing theft of money owned by . . . Complainant, and with intent to obtain and 

maintain control of the property, intentionally and knowingly threaten and place 

Complainant in fear of imminent bodily injury and death.” As the Attorney General 

concedes, “There was no evidence that [defendant] took property from the victim’s actual 

or constructive possession and carried it away, and because 1974 Texas robbery law did 

not require those elements, the trial court erred when it determined [defendant’s] Texas 

robbery conviction qualified as a strike under California law. (See [Rodriguez], supra, 

122 Cal.App.4th at p. 131.)” We agree, and on that basis conclude there was insufficient 

evidence to support this finding by the trial court.

DISPOSITION

The trial court’s determination that defendant’s prior Texas robbery conviction 

qualified as a strike prior under California law is reversed. The case is remanded for 

retrial of the strike prior, and if necessary for resentencing. The judgment is otherwise 

affirmed.
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_________________________

Miller, J.

We concur:

_________________________

Richman, Acting P.J.

_________________________

Stewart, J.

A144491, People v. Salinas