P. v. Williams

Filed 10/16/17 P. v. Williams CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
BARTON RHETT WILLIAMS,
Defendant and Appellant.
H042903
(Santa Clara County
Super. Ct. No. C1230617)
Defendant Barton Rhett Williams appeals following his conviction by a jury of
first degree murder. On appeal, he raises claims of instructional error, prosecutorial
misconduct, ineffective assistance of counsel, and cumulative error. He also contends the
trial court erred in determining that two out-of-state convictions were strikes for purposes
of the Three Strikes Law. We shall affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Santa Clara County District Attorney charged defendant with murder
(Pen. Code, § 187)1 and alleged that he had personally inflicted great bodily injury within
the meaning of sections 667 and 1192.7. The first amended information also alleged that
defendant had sustained two prior strike convictions (§§ 667, subd. (b)-(i), 1170.12)—a
first degree burglary conviction in violation of Oregon Revised Statute section 164.225
1 All further statutory citations are to the Penal Code unless otherwise indicated.

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and robbery in violation of Oregon Revised Statute section 164.405.2 It further alleged
that the Oregon robbery conviction constituted a serious felony conviction (§ 667,
subd. (a)) and that defendant had served a prison prior term in California (§ 667.5,
subd. (b)).
The case proceeded to a jury trial in late 2014. The following evidence was
adduced at trial.
Late on the night of April 16, 2012, Witwas Lee Shugan walked to his parked car
after leaving work at the Thai restaurant he owns in downtown San Jose. As he entered
the parking lot at 35 South Second Street, defendant approached him and asked him to
call 911. Shugan saw flames and realized a woman was on fire. Shugan notified the
parking attendant, Terrence Cruz, who called 911. That call came in at 11:43 p.m. Cruz
threw water on the flames to put them out.
The victim was sixty-four-year-old Patricia Storey, defendant’s wife. Storey was
alive when paramedics arrived, despite extensive and horrific injuries. She had sustained
burns to 78 percent of her body, many of them third and fourth degree. Storey’s treating
physician at Santa Clara Valley Medical Center testified that Storey’s burns were some of
the worst the doctor had ever seen and were not survivable. Story died from her injuries
at 2:00 p.m. on April 17th. The assistant medical examiner who conducted Storey’s
autopsy identified her cause of death as thermal and inhalation injuries due to engulfment
in fire.
San Jose police officers Mike Waara and Adam Nyein were among the first
responders. Each independently interviewed defendant at the scene and recordings of
those interviews were played for the jury.
Defendant told Officer Waara he and his wife bought two pints of vodka at 7:30 or
2 The information was later amended to allege that defendant had been convicted
of third degree robbery in violation of Oregon Revised Statute section 164.395, not of
violating Oregon Revised Statute section 164.405, which is second degree robbery.

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8:00 p.m. that night and came to the parking lot. At some point, he lit a cigarette for her
and then walked to the Safeway to buy a soda. When he returned 15 to 20 minutes later,
she was on fire. Defendant said she must have passed out with the cigarette. Defendant
told Officer Nyein a similar story.
The incident was captured on the parking lot’s surveillance video, which was
played at trial. According to witness testimony describing the video, it showed defendant
and Storey sitting towards the back of the parking lot. Storey was in a chair with her
back to the camera; defendant was sitting on some steps in front of her. The video
showed several small flashes of light originate in defendant’s lap and move onto Storey’s
lap. Then smoke became visible, followed by large flames engulfing Storey. Nearly
three minutes after the flames became visible on Storey, the video showed defendant
using a blanket to smother the fire.
Officers arrested defendant on April 18th after viewing the surveillance video.
Arson investigator Sandra Wells determined that the fire originated in Storey’s lap
and that it was a quick burning fire, which is not consistent with a dropped cigarette.
Karen Froming, M.D., a clinical neuropsychologist, testified for the defense as an
expert in neuropsychology and the effects of substance abuse and alcohol on the brain.
Dr. Froming testified that she met with defendant five times, with each session lasting
several hours, to interview him and conduct testing. She opined that defendant suffers
from various neuropsychological deficits, including slow processing speed, poor strategic
planning, and attentional problems. She further testified that he suffers from severe
alcohol dependence and had been a chronic abuser of alcohol for 20 years. Dr. Froming
opined that a person with deficits like defendant’s—delayed processing speed and
strategic planning problems—might approach something like a person on fire in a
“haphazard” and illogical way despite having good intentions.
In closing, the prosecution argued two theories of first degree murder—
premeditated murder and felony murder. As to felony murder, the trial court instructed

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the jury: “The defendant is charged with murder under a theory of felony murder. To
prove that the defendant is guilty of first degree murder under this theory the People must
prove that, one, the defendant committed arson of property. Two, the defendant
specifically intended to commit arson of property. And three, while committing arson of
property, the defendant caused the death of another person. [¶] A person may be guilty
of felony murder even if the killing was unintentional, accidental, or negligent. . . . The
defendant must have intended to commit the felony of arson of property before or at the
time that he caused the death.”
On December 22, 2014, after deliberating for approximately 30 minutes, the jury
returned a verdict of guilty of first degree murder.
On July 14, 2015, following a bench trial on priors, the trial court granted the
prosecution’s request to amend the information to allege that the Oregon burglary
conviction constituted a serious felony conviction (§ 667, subd. (a)) and concluded that
the prior Oregon convictions qualified as strikes under the Three Strikes Law.
The trial court sentenced defendant on September 25, 2015. The court imposed a
term of 85 years to life, consisting of an indeterminate term of 75 years to life on the
murder conviction plus an additional 10-year term for the two section 667,
subdivision (a) enhancements. The court struck the prison prior (§ 667.5(b)) pursuant to
section 1385.
Defendant timely appealed.
II. DISCUSSION
A. Felony Murder Instructions
Defendant contends the trial court erred in instructing the jury on felony murder
because the underlying felony—arson—was merely incidental to the killing.
Specifically, he says there was no evidence he harbored an intent to commit arson
separate from any intent to kill, such that the theory of felony murder was inapplicable
and the instruction at issue was unsupported by substantial evidence. Alternatively,

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defendant says the instruction was incomplete in that jurors were not informed that they
could not convict him of felony murder if they concluded that the arson was merely
incidental to the killing. The People respond that defendant forfeited his challenge,
which, in any event, fails because the rule on which he relies applies only in the context
of a felony-murder special circumstance allegation.
1. Forfeiture
Defendant failed to object to the felony murder instruction below. The People
contend he thereby forfeited his claim of instructional error. We reach the merits of
defendant’s claim despite the lack of objection for two reasons. First, defendant contends
the error affected his “substantial rights,” such that the instruction is reviewable “even
though no objection was made . . . in the lower court . . . .” (§ 1259.) “Ascertaining
whether claimed instructional error affected the substantial rights of the defendant
necessarily requires an examination of the merits of the claim.” (People v. Andersen
(1994) 26 Cal.App.4th 1241, 1249.) Second, defendant asserts his trial counsel rendered
ineffective assistance by failing to object. To resolve that claim, we must address the
merits of the issue.
2. Standard of Review
“It is error to give an instruction which, while correctly stating a principle of law,
has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116,
1129.) “Whether or not to give any particular instruction in any particular case entails the
resolution of a mixed question of law and fact that . . . is . . . predominantly legal. As
such, it should be examined without deference.” (People v. Waidla (2000) 22 Cal.4th
690, 733.) In other words, our review of the claimed instructional error is de novo.
(People v. Johnson (2016) 6 Cal.App.5th 505, 509-510.)

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3. Legal Principles: The Felony-Murder Doctrine, the Felony-Murder
Special Circumstance, and the Independent Felonious Purpose Rule
Under the felony-murder doctrine, any killing “committed in the perpetration of,
or attempt to perpetrate, arson [or another enumerated felony] . . . is murder of the first
degree.” (§ 189.) “Felony-murder liability does not require an intent to kill, or even
implied malice, but merely an intent to commit the underlying felony.” (People v.
Gonzalez (2012) 54 Cal.4th 643, 654.) “The purpose of the felony-murder rule is to deter
those who commit the enumerated felonies from killing by holding them strictly
responsible for any killing committed by a cofelon, whether intentional, negligent, or
accidental, during the perpetration or attempted perpetration of the felony. [Citation.]
‘The Legislature has said in effect that this deterrent purpose outweighs the normal
legislative policy of examining the individual state of mind of each person causing an
unlawful killing to determine whether the killing was with or without malice, deliberate
or accidental, and calibrating our treatment of the person accordingly. Once a person
perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment
of the Legislature, he is no longer entitled to such fine judicial calibration, but will be
deemed guilty of first degree murder for any homicide committed in the course
thereof.’ ” (People v. Cavitt (2004) 33 Cal.4th 187, 197.)
In California, “only first degree murder with special circumstances is . . .
punishable” by death. (People v. Anderson (2002) 28 Cal.4th 767, 773 (Anderson), citing
§§ 190, subd. (a), 190.2, subd. (a).) “[S]pecial circumstances were added to the murder
laws in the 1970’s to conform California’s death penalty law to the requirements of the
United States Constitution.” (Anderson, supra, at p. 775.) They do so by “narrow[ing]
the pool of those eligible for death.” (People v. Gamache (2010) 48 Cal.4th 347, 406.)
One such special circumstance is the felony-murder special circumstance, which
applies where a murder “was committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or the immediate flight after
committing, or attempting to commit,” certain enumerated felonies, including arson.

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(§ 190.2, subd. (a)(17)(H).) “ ‘[T]o prove a felony-murder special-circumstance
allegation, the prosecution must show that the defendant had an independent purpose for
the commission of the felony, that is, the commission of the felony was not merely
incidental to an intended murder.’ [Citation.]” (People v. Horning (2004) 34 Cal.4th
871, 907.) “ ‘In other words, if the felony is merely incidental to achieving the murder—
the murder being the defendant’s primary purpose—then the special circumstance is not
present, but if the defendant has an ‘independent felonious purpose’ (such as burglary or
robbery) and commits the murder to advance that independent purpose, the special
circumstance is present.’ ” (Id. at p. 908.)
As the court explained in People v. Green (1980) 27 Cal.3d 1, 61-62 (Green),
overruled on another ground by People v. Martinez (1999) 20 Cal.4th 225, 239, the
rationale for the so-called “independent felonious purpose” rule is tied to the
Legislature’s intent in enacting the felony-murder special circumstance. Green reasoned
that, in enacting section 190.2, “the Legislature must have intended that each special
circumstance provide a rational basis for distinguishing between those murderers who
deserve to be considered for the death penalty and those who do not. . . . The [felony-
murder special circumstance] provision thus expressed a legislative belief that it was not
unconstitutionally arbitrary to expose to the death penalty those defendants who killed in
cold blood in order to advance an independent felonious purpose, e. g., who carried out
an execution-style slaying of the victim of or witness to a holdup, a kidnaping, or a rape.
[¶] The Legislature’s goal is not achieved, however, when the defendant’s intent is not to
steal but to kill and the robbery is merely incidental to the murder . . . .” (Green, supra,
at p. 61.)
Since 2000, by statute, the independent felonious purpose rule no longer applies to
a felony-murder special circumstance based on arson. (People v. Odom (2016) 244
Cal.App.4th 237, 253-254 (Odom), citing § 190.2, subd. (a)(17)(M).) “Thus, . . . even
if . . . arson is committed primarily [or solely] for the purpose of facilitating a murder, the

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special circumstance may be found true.” (Odom, supra, at p. 254; § 190.2,
subd. (a)(17)(M) [“To prove the special circumstances of kidnapping in subparagraph
(B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that
there be proof of the elements of those felonies. If so established, those two special
circumstances are proven even if the felony of kidnapping or arson is committed
primarily or solely for the purpose of facilitating the murder”].)
4. Analysis
Defendant contends that the “independent felonious purpose” rule, although it was
developed in the context of the felony-murder special circumstance, applies equally to the
felony-murder doctrine. For that argument, he relies on California Supreme Court cases
stating that, for purposes of the felony-murder doctrine, the felony must not be “ ‘merely
incidental to, or an afterthought to, the killing.’ ” (People v. Elliot (2005) 37 Cal.4th 453,
469.)
The California Supreme Court first used the “merely incidental” language in the
context of the felony-murder doctrine in People v. Hernandez (1988) 47 Cal.3d 315, 348
(Hernandez). There, the defendant argued that the felony-murder doctrine did not apply
because the underlying felony—rape—was complete at the time of the homicide. (Ibid.)
In rejecting that argument, the Supreme Court noted that, “in discussing the special
circumstance of felony murder, [it had stated that] determining whether a killing had
occurred in the commission of a felony is not ‘a matter of semantics or simple
chronology.’ (People v. Green (1980) 27 Cal.3d 1, 60.) . . . Instead the focus is on the
relationship between the underlying felony and the killing and whether the felony is
merely incidental to the killing, an afterthought.” (Hernandez, supra, 47 Cal.3d at
p. 348.) While the Supreme Court has since repeated the “merely incidental” language in
describing the felony-murder doctrine, defendant does not direct us to a single case in
which a court has held that felony-murder doctrine instructions were improper because
the independent felonious purpose rule was not satisfied. Thus, it is far from clear that

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the Supreme Court has imported the “independent felonious purpose” rule wholesale into
the felony-murder doctrine context, as defendant argues. (See People v. Andreasen
(2013) 214 Cal.App.4th 70, 82, fn. 7 (Andreasen) [“We note that, for felony murder, the
California Supreme Court has at times stated the felony must not be merely incidental to
the killing. [Citation.] However, this principle does not appear to have been developed
as a distinct requirement akin to the independent-felonious-purpose rule applied to the
felony-murder special circumstance”].)
But even assuming the “independent felonious purpose” rule applies equally in the
felony-murder special circumstance and felony-murder doctrine contexts, it does not
apply here for two reasons. First, under section 190.2, subdivision (a)(17)(M), the
independent felonious purpose rule does not apply to a felony-murder special
circumstance based on arson. It would make little sense to conclude the rule nevertheless
applies to the felony-murder doctrine where the underlying felony is arson. Second, in
People v. Farley (2009) 46 Cal.4th 1053 (Farley), the California Supreme Court held that
the merger doctrine, under which an assaultive felony merges with a homicide absent an
independent felonious purpose and cannot be the basis of a felony-murder instruction,
does not apply to first degree felony murder. The Farley court reasoned that “nothing in
the language of section 189 supports the application of the merger doctrine to its terms,”
such that applying it to first degree felony murder would improperly “narrow[] the
Legislature’s clear and specific definition of first degree murder.” (Id. at p. 1119.) The
same reasoning forecloses courts from engrafting a “independent felonious purpose” rule
into section 189. (Andreasen, supra, 214 Cal.App.4th at p. 82, fn. 7 [“The Farley
decision confirms that the independent-felonious-purpose requirement is confined to the
special circumstance and it does not extend to the felony-murder offense”].)
For the foregoing reasons, we conclude the trial court did not err in instructing the
jury on felony murder, nor was the court’s instruction incomplete.

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B. Ineffective Assistance of Counsel for Failure to Object to Prosecutorial
Misconduct
During his closing argument, the prosecutor argued: “Back to Dr. Froming. So
the important question, of course, is, is the defendant so cognitively impaired that he’s
not able, or can’t form, for instance, intent to kill, when he set his wife on fire, or be
aware of the danger of his actions and consciously ignore it? Or is he so cognitively
impaired that he can’t plan or premeditate, even at the simple level that would be required
for the kind of crime that occurred. And in order to answer that question, you need to
look at all of the evidence. And I think when you look at all of the evidence the only
reasonable conclusion or inference is, no. He was not so impaired that he couldn’t form
those basic intentions. Those basic state of minds that we’ve been talking about that refer
to the crimes charged the night he killed the victim.”
Defendant contends that argument misstated the law and improperly shifted the
burden of proof by suggesting that it was the defense’s obligation to prove diminished
capacity. Defendant concedes that he did not object below to the prosecutor’s argument.
Accordingly, he does not raise a prosecutorial misconduct claim, but rather argues trial
counsel was ineffective for failing to object.
1. Legal Principles
a. Ineffective Assistance of Counsel
“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a
claim of ineffective assistance of counsel, a criminal defendant must establish both that
his counsel’s performance was deficient and that he suffered prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance
component of an ineffective assistance of counsel claim requires a showing that
“counsel’s representation fell below an objective standard of reasonableness” “under
prevailing professional norms.” (Id. at p. 688.) With respect to prejudice, a defendant

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must show “there is a reasonable probability”—meaning “a probability sufficient to
undermine confidence in the outcome”—“that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” (Id. at p. 694.) We “need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that
course should be followed.” (Id. at p. 697.)
b. Prosecutorial Misconduct
“ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ”
[Citation.]’ ” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).)
“It is improper for the prosecutor to misstate the law generally, and in particular,
to attempt to lower the burden of proof.” (People v. Ellison (2011) 196 Cal.App.4th
1342, 1353.) “However, we do not reverse a defendant’s conviction because of
prosecutorial misconduct unless it is reasonably probable the result would have been
more favorable to the defendant in the absence of the misconduct.” (Ibid.)
“When attacking the prosecutor’s remarks to the jury, the defendant must show
that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.]’ ” (People v. Centeno (2014) 60 Cal.4th 659,
667 (Centeno).) “If the challenged comments, viewed in context, ‘would have been taken
by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed

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objectionable.’ ” (People v. Cortez (2016) 63 Cal.4th 101, 130.) “ ‘[W]e “do not lightly
infer” that the jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements. [Citation.]’ ” (Centeno, supra, at p. 667.)
c. Admissibility of Mental State Evidence
The defense of diminished capacity has been abolished by statute in this state.
(People v. Mayfield (1993) 5 Cal.4th 142, 198, fn.10; § 25, subd. (a).) Accordingly,
“evidence concerning an accused person’s intoxication, trauma, mental illness, disease, or
defect [is] not . . . admissible to show or negate capacity to form the particular purpose,
intent, motive, malice aforethought, knowledge, or other mental state required for the
commission of the crime charged.” (§ 25, subd. (a).) Instead, “[e]vidence of mental
disease, mental defect, or mental disorder is admissible solely on the issue of whether or
not the accused actually formed a required specific intent, premeditated, deliberated, or
harbored malice aforethought, when a specific intent crime is charged.” (§ 28, subd. (a).)
“[A]ny expert testifying about a defendant’s mental illness, mental disorder, or mental
defect shall not testify as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose, intent, knowledge, or malice
aforethought, for the crimes charged.” (§ 29.)
2. Analysis
Defendant argues the prosecutor’s remarks misstated the law by indicating that
defendant’s capacity to form intent was relevant and that defendant bore the burden to
establish that he lacked the requisite mental state. Defendant further contends the
prosecutor implicitly criticized Dr. Froming for failing to opine as to defendant’s ability
to form the requisite mental state, something section 29 prohibits.
We agree with defendant that the prosecutor misstated the law by suggesting that
defendant’s ability to form the requisite intent or mental state was at issue, when in fact
the diminished capacity defense has long been abolished in this state. But defendant has
failed to establish prejudice from defense counsel’s failure to object to that misstatement

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of law. The remarks at issue were brief. Elsewhere in his closing argument, the
prosecutor spent considerable time explaining how, in his view, the evidence established
the requisite intent for first degree murder. And the jury was given a series of
instructions that correctly explained the law, including CALCRIM No. 200 (“You must
follow the law as I explain it to you . . . . If you believe that the attorneys’ comments on
the law conflict with my instructions, you must follow my instructions”); CALCRIM No.
521 (“The defendant is guilty of first degree murder if the People have proved that he
acted willfully, deliberately, and with premeditation”); CALCRIM No. 1501 (“To prove
that defendant is guilty of Arson, the People must prove that . . . [¶] . . . [¶] [the
defendant] acted willfully and maliciously”); and CALCRIM No. 3428 [“You may
consider . . . evidence [that the defendant may have suffered from a mental defect] only
for the limited purpose of deciding whether, at the time of the charged crime, the
defendant acted with the intent or mental state required for that crime. [¶] The People
have the burden of proving beyond a reasonable doubt that the defendant acted with the
required intent or mental state . . .”). “In the absence of evidence to the contrary, we
presume the jury understood and followed the court’s instructions.” (People v. Williams
(2009) 170 Cal.App.4th 587, 635 (Williams).) Under these circumstances, the
prosecutor’s misstatement was not prejudicial and thus cannot form the foundation for an
ineffective assistance claim.
C. Cumulative Error
Defendant contends the cumulative effect of the alleged errors was to deprive him
of his right to due process. “Under the cumulative error doctrine, the reviewing court
must ‘review each allegation and assess the cumulative effect of any errors to see if it is
reasonably probable the jury would have reached a result more favorable to defendant in
their absence.’ ” (Williams, supra, 170 Cal.App.4th at p. 646.) “The ‘litmus test’ for
cumulative error ‘is whether defendant received due process and a fair trial.’ ” (People v.
Cuccia (2002) 97 Cal.App.4th 785, 795.)

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Because we have found no errors, the cumulative error doctrine has no
application.3
D. Adjudication of Oregon Convictions as Strikes
Finally, defendant argues the trial court violated state law and his Sixth
Amendment right to a jury trial in concluding that his Oregon burglary and robbery
convictions qualify as strikes under California law. We find no error.
1. Legal Principles
“California’s ‘Three Strikes’ law requires criminal sentences to be increased when
a defendant has been convicted of one or more prior serious or violent felonies, or
‘strikes.’ ” (People v. Saez (2015) 237 Cal.App.4th 1177, 1193 (Saez).) “A qualifying
strike includes ‘[a] prior conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state prison . . . if the prior
conviction in the other jurisdiction is for an offense that includes all of the elements of a
particular . . . serious felony as defined in subdivision (c) of Section 1192.7.’ ” (Ibid.,
quoting § 667, subd. (d)(2).) Among the serious felonies listed in section 1192.7,
subdivision (c) are first degree burglary and robbery. (§ 1192.7, subds. (c)(18) &
(c)(19)).)
“[U]nder California law it is the court, rather than the jury, that is entrusted with
the responsibility of” determining whether a prior conviction qualifies as a strike.
(People v. McGee (2006) 38 Cal.4th 682, 685 (McGee).) In making that determination,
our Supreme Court has held that the trial court may examine the entire record of
conviction “to determine the nature or basis of the crime of which the defendant was
convicted.” (Id. at p. 691.) The court’s focus ought to be “on the elements of the offense
3 While we conclude the prosecutor committed misconduct by misstating the law
in closing argument, defendant raises that issue only in the context of an ineffective
assistance of counsel claim based on trial counsel’s failure to object. We reject that
challenge on the ground that defendant has not established prejudice.

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of which the defendant was convicted. If the enumeration of the elements of the offense
does not resolve the issue, an examination of the record of the earlier criminal proceeding
is required in order to ascertain whether that record reveals whether the conviction
realistically may have been based on conduct that would not constitute a serious felony
under California law. [Citation.] The need for such an inquiry does not contemplate that
the court will make an independent determination regarding a disputed issue of fact
relating to the defendant’s prior conduct [citation], but instead that the court simply will
examine the record of the prior proceeding to determine whether that record is sufficient
to demonstrate that the conviction is of the type that subjects the defendant to increased
punishment under California law.” (Id. at p. 706.) The trial transcript is part of the
record of conviction (People v. Bartow (1996) 46 Cal.App.4th 1573, 1580 (Bartow)),
while police reports generally are not (Draeger v. Reed (1999) 69 Cal.App.4th 1511,
1521, 1523; People v. Perez (2016) 3 Cal.App.5th 812, 821-822 (Perez)). “Even when
an item is part of the record of conviction, it is not automatically relevant or admissible
for a particular purpose. [Citations.] Its admission must comport with the rules of
evidence, particularly the hearsay rule and exceptions thereto.” (Perez, supra, at pp. 821-
822, fn. 9.)
Federal Constitutional principles, including the Sixth Amendment right to a jury
trial, require that “any fact that increases the penalty for a crime beyond the prescribed
statutory maximum . . . be submitted to a jury, and proved beyond a reasonable doubt.”
(Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) However, under
Apprendi, that general rule does not apply to “the fact of a prior conviction.” (Ibid.) The
McGee court concluded that California’s approach, under which the court examines the
record of a prior conviction to determine whether that conviction constitutes a strike, does
not run afoul of Apprendi because it falls within the fact-of-a-prior-conviction exception.
(McGee, supra, 38 Cal.4th at p. 709.) McGee acknowledged “the possibility that the
United States Supreme Court, in future decisions, may extend the Apprendi rule,”

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applying it “to the inquiry involved in examining the record of a prior conviction to
determine whether that conviction constitutes a qualifying prior conviction for purposes
of a recidivist sentencing statute.” (Ibid.) But the McGee court declined to assume “that
the federal constitutional right to a jury trial will be interpreted to apply in [that] context.”
(Ibid.)
In 2013, several years after McGee was issued, the United States Supreme Court
decided Descamps v. United State (2013) 570 U.S. __, [133 S.Ct. 2276] (Descamps).
Descamps addressed how a sentencing court should determine whether a prior conviction
qualifies as a violent felony under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e), which increases sentences of federal defendants with three such prior
convictions. (Descamps, supra, at p. __ [133 S.Ct. at p. 2281].) The Descamps Court
endorsed a “categorical approach,” under which the sentencing court “compare[s] the
elements of the statute forming the basis of the defendant’s conviction with the elements
of the ‘generic’ crime—i.e., the offense as commonly understood. The prior conviction
qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower
than, those of the generic offense.” (Ibid.) “[W]hen a prior conviction is for violating a
so-called ‘divisible statute[,]’ . . . [one that] sets out one or more elements of the offense
in the alternative[,] . . . the [so-called] modified categorical approach permits sentencing
courts to consult a limited class of documents, such as indictments and jury instructions,
to determine which alternative formed the basis of the defendant’s prior conviction. The
court can then do what the categorical approach demands: compare the elements of the
crime of conviction (including the alternative element used in the case) with the elements
of the generic crime.” (Ibid.) The Court noted that under either approach, the “focus [is]
on the elements, rather than the facts, of a crime.” (Id. at p. __ [133 S.Ct. at p. 2285].)
The Descamps Court offered three justifications for its “elements-centric”
approach: (1) the ACCA’s text and history, (2) avoidance of the “Sixth Amendment
concerns that would arise from sentencing courts’ making findings of fact that properly

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belong to juries,” and (3) “ ‘the practical difficulties and potential unfairness of a factual
approach.’ ” (Descamps, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2287].) With respect to
the Sixth Amendment, the Court stated that because a sentencing “court’s finding of a
predicate offense indisputably increases the maximum penalty,” such a “finding would
(at the least) raise serious Sixth Amendment concerns if it went beyond merely
identifying a prior conviction.” (Descamps, supra, at p. __ [133 S.Ct. at p. 2288].) In the
Court’s view “[t]hose [Sixth Amendment] concerns . . . counsel against allowing a
sentencing court to ‘make a disputed’ determination ‘about what the defendant and state
judge must have understood as the factual basis of the prior plea,’ or what the jury in a
prior trial must have accepted as the theory of the crime.” (Ibid.) The Court criticized
the Ninth Circuit’s approach, which “authorize[d] the [sentencing] court to try to discern
what a trial showed, or a plea proceeding revealed, about the defendant’s underlying
conduct,” explaining that “[t]he Sixth Amendment contemplates that a jury—not a
sentencing court—will find such facts, unanimously and beyond a reasonable doubt. And
the only facts the court can be sure the jury so found are those constituting elements of
the offense—as distinct from amplifying but legally extraneous circumstances.
[Citation.] Similarly, . . . when a defendant pleads guilty to a crime, he waives his right
to a jury determination of only that offense’s elements; whatever he says, or fails to say,
about superfluous facts cannot license a later sentencing court to impose extra
punishment.” (Ibid.)
In a dissent, Justice Alito expressed the view that there would be no Sixth
Amendment violation if “a judge applying ACCA . . . determin[es], not what the
defendant did when the [crime] in question was committed, but what the jury in that case
necessarily found or what the defendant, in pleading guilty, necessarily admitted . . . .”
(Descamps, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2300] (dis. opn. of Alito, J.).)
The Court revisited the issue of how sentencing courts determine whether a prior
conviction constitutes an ACCA predicate in Mathis v. United States (2016) 579 U.S. __,

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[136 S.Ct. 2243] (Mathis). In affirming the approach laid out in Descamps, the Court
stated that, under the Sixth Amendment and Apprendi, “a judge cannot go beyond
identifying the crime of conviction to explore the manner in which the defendant
committed that offense. [Citations.] . . . He can do no more, consistent with the Sixth
Amendment, than determine what crime, with what elements, the defendant was
convicted of.” (Mathis, supra, at p. __ [136 S.Ct. at p. 2252].) But only Chief Justice
Roberts and Justices Kagan, Sotomayor, and Thomas agreed on that point. Justice
Kennedy concurred but wrote separately to express his view that Apprendi “does not
compel the elements based approach. That approach is required only by the Court’s
statutory precedents, which Congress remains free to overturn.” (Id. at p. __ [136 S.Ct. at
p. 2258] (conc. opn. of Kennedy, J.).) Justice Breyer, in a dissent joined by Justice
Ginsburg, concluded that, in certain circumstances, Apprendi permits a sentencing court
to look beyond the elements of the crime of conviction to determine whether a prior
conviction constitutes an ACCA predicate. (Mathis, supra, at pp. __ [136 S.Ct. at
pp. 2260, 2265] (dis. opn. of Breyer, J.).) For example, where the statute at issue is
broader than the federal version of the crime, the sentencing court may look to
the charging documents; if they “make clear that the state alleged (and the jury or trial
judge necessarily found) only an alternative that matches the federal version of the
crime,” then the prior conviction may be counted as an ACCA predicate. (Mathis, supra,
at p. __ [136 S.Ct. at p. 2266] (dis. opn. of Breyer, J.).) Justice Alito maintained the view
he expressed in Descamps: the elements-based approach “is not required by . . . the Sixth
Amendment . . . .” (Id. at p. __ [136 S.Ct. at p. 2271, fn. 4] (dis. opn. of Alito, J.).)
The California Supreme Court has not yet considered the effect of Descamps and
Mathis on California’s approach to determining whether an out-of-state prior conviction

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qualifies as a serious felony.4 In People v. Wilson (2013) 219 Cal.App.4th 500, 516, this
court considered Descamps and held “only that federal law prohibits what McGee already
proscribed: A court may not impose a sentence above the statutory maximum based on
disputed facts about prior conduct not admitted by the defendant or implied by the
elements of the offense.” Some of our sister Courts of Appeal have gone further. For
example, in People v. Marin (2015) 240 Cal.App.4th 1344, 1348-1349, the Second
District held that, “under Descamps, judicial factfinding authorized by [McGee], going
beyond the elements of the crime to ‘ascertain whether that record reveals whether the
conviction realistically may have been based on conduct that would not constitute a
serious felony under California law’ [citation], violates the Sixth Amendment right to a
jury trial . . . .” In People v. Navarette (2016) 4 Cal.App.5th 829, 855, the Fifth District
read Descamps to mean that the Sixth Amendment does not permit a sentencing court to
“go beyond the elements of the [prior] offense in determining whether the offense
coincided with a serious felony in California.” And the First District has concluded that
“the reasoning of Descamps leads ineluctably to the conclusion that a judicial strike and
serious felony determination based on the record of a prior conviction contravenes the
Sixth Amendment insofar as it rests on facts beyond the elements of the conviction,
unless the defendant waives a jury as to those facts and either admits them or assents to
the court’s finding them.” (People v. Eslava (2016) 5 Cal.App.5th 498, 514.)
2. State Law Analysis
a. Oregon Burglary
As the trial court concluded following a bench trial on priors, the elements of first
4 Our Supreme Court is currently considering that issue in People v. Gallardo,
S231260 (review granted Feb. 17, 2016), which presents the following issue: Was the
trial court’s decision that defendant’s prior conviction constituted a strike incompatible
with Descamps, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2276] because the trial court
relied on judicial fact-finding beyond the elements of the actual prior conviction?

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degree burglary under Oregon law (Or. Rev. Stat., § 164.225) differ from the elements of
that offense under California law (§§ 459-460). The elements of first degree burglary
under Oregon law are (1) entering or remaining unlawfully in a building (2) with intent to
commit a crime therein and (3) “the building is a dwelling, or if in effecting entry or
while in a building or in immediate flight therefrom the person: [¶] (a) Is armed with a
burglary tool or theft device as defined in ORS 164.235 or a deadly weapon; [¶] (b)
Causes or attempts to cause physical injury to any person; or [¶] (c) Uses or threatens to
use a dangerous weapon.” (Or. Rev. Stat., §§ 164.225, 164.215.) “The elements of first
degree burglary in California are (1) entry into a structure [(2)] currently being used for
dwelling purposes . . . ([3]) with the intent to commit a theft or a felony.” (People v.
Sample (2011) 200 Cal.App.4th 1253, 1261.) The Oregon statute under which defendant
was convicted is broader than California’s first degree burglary statute in two ways.
First, it requires intent to commit any crime, while California law requires intent to
commit a theft or a felony. Second, under Oregon law, the entered structure need not be
currently being used for dwelling purposes as it must under California law. (See State v.
Ramey (1988) 89 Or.App. 535, 539 [Oregon law defining “dwelling” for purposes of
Or. Rev. Stat. § 164.225 “does not require that at the time of the entry there must be an
identifiable person using or authorized to use the building as sleeping quarters, either
regularly or intermittently…”]; cf. People v. Valdez (1962) 203 Cal.App.2d 559, 563
[burglary of rental unit where no one resided was not first degree burglary because unit
was uninhabited].)
Given the statutory disconnect, the sentencing court examined the record of the
conviction, which it determined to include the indictment, the judgment of conviction, a
“Petition to Waive Jury Trial and Try the Case to the Court Upon Stipulated Facts”
signed by defendant, and the police report. The indictment accused defendant of
“unlawfully and knowingly enter[ing] a dwelling . . . with the intent to commit the crime
of theft therein . . . .” The petition states, among other things, “I waive trial by jury and

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stipulate to the facts and request the court to accept my waiver and stipulation and to
enter my waiver and stipulation on that basis that in Multnomah County, Oregon (write in
facts and dates) I stipulate that the State would bring in evidence consistent with the
police reports if this case went to trial.” The judgment of conviction states “it is adjudged
that defendant has been convicted on defendant’s plea of . . . not guilty and finding of
guilty, by court trial. ([S]tip[.] facts[.])” The police report states that the victim was
returning to his apartment when he observed the defendant in the hallway with the
victim’s bicycle, which had been in the apartment. The court concluded that the police
report was part of the record of conviction because it was “the basis for the court’s
finding of guilt and, importantly, the defendant stipulated that the State would bring in
evidence consistent with the police report such that defendant waived his Sixth
Amendment right to confront and cross-examine.”
Based on the indictment, the court below concluded that the intent to commit theft
element of first degree burglary under California law was satisfied. And the court
determined from the police report that the inhabited dwelling element was satisfied.
Accordingly, the court concluded that defendant’s Oregon burglary conviction qualified
as a strike for purposes of the Three Strikes Law.
Defendant contends the trial court erred under McGee in considering the police
report. His argument appears to be two-fold: the police report was not part of the record
of conviction and constituted inadmissible hearsay. We disagree on both counts.
Defendant is correct that, ordinarily, police reports are not part of the record of
conviction. (Perez, supra, 3 Cal.App.5th at p. 822, fn. 9.) But, here, the sole factual
basis for defendant’s burglary conviction was his stipulation “that the State would bring
in evidence consistent with the police reports if this case went to trial.” That stipulation
authorized the Oregon trial court to consider the police report as evidence of guilt. Had
the burglary victim and responding officers testified, the trial transcript would have been
part of the record of conviction. (Bartow, supra, 46 Cal.App.4th at p. 1580 [trial

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transcript is part of the record of conviction].) We have little trouble concluding that the
police report stipulated to in lieu of such live testimony likewise is part of the record of
conviction. (See Saez, supra, 237 Cal.App.4th at p. 1198, fn.18 [police officer’s sworn
statement held to be part of the record of conviction where defendant stipulated to the
statement as the factual basis for his plea because “the officer’s statements became
evidence of the basis of the conviction”].)
“The normal rules of hearsay generally apply to evidence admitted as part of the
record of conviction to show the conduct underlying the conviction.” (People v. Woodell
(1998) 17 Cal.4th 448, 458.) Here, defendant waived any hearsay objection to the police
report by stipulating that the court could consider its contents as evidence. (Switzer v.
Mullally (1935) 7 Cal.App.2d 444, 446 [defendant waived hearsay objection to doctor’s
autopsy report that “was read into evidence, under a stipulation that it might be so read to
avoid the necessity of the personal appearance of the doctor in court”].) Defendant notes
that he did not stipulate to the truth of the facts in the police report, only that the State
would produce evidence consistent with those facts. We agree, but that nuance does not
impact our analysis. What matters here is that, for purposes of a court trial, defendant
stipulated to the court’s consideration of the contents of the police report in lieu of live
testimony. In doing so, he plainly waived any hearsay objection.
For the foregoing reasons, we conclude that, under the circumstances of this case,
the trial court did not commit state law error by considering the police report as part of
the record of conviction.
b. Oregon Robbery
The trial court concluded that the elements of third degree robbery under Oregon
law (Or. Rev. Stat., 164.395) differed from the elements of robbery under California law
(§ 211). We agree. The elements of third degree robbery under Oregon law are (1) in the
course of committing or attempting to commit theft (2) the person uses or threatens the
immediate use of physical force upon another person with the intent of (3) preventing or

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overcoming resistance to the taking of the property or to retention thereof immediately
after the taking; or compelling the owner of such property or another person to deliver the
property or to engage in other conduct which might aid in the commission of the theft.
(Or. Rev. Stat., 164.395) The elements of robbery in California are (1) the felonious
taking of personal property in the possession of another, (2) from his person or immediate
presence, and (3) against his will, (4) accomplished by means of force or fear. (§ 211.)
In California, “[a] theft becomes a robbery if the property of another was ‘peacefully
acquired, but force or fear was used’ in carrying the property away.” (People v. Hudson
(2017) 11 Cal.App.5th 831, 838.) The Oregon law is broader than the California law, as
it does not require the actual taking of personal property (attempted theft is sufficient) or
that the property be taken from a person’s immediate presence.
The trial court again looked to the record of conviction. The court determined that
the record of conviction included a jury trial waiver signed by defendant, a transcript of
the bench trial, and a Trial Order stating “[a]fter receiving evidence and hearing the
arguments of counsel, . . . the court hereby FINDS said defendant GUILTY of the lesser,
included offense of ROBBERY IN THE THIRD DEGREE.” The trial transcript shows a
gas station employee testified that defendant tried to buy a pack of cigarettes and two
40-ounce bottles of beer. The employee testified that defendant did not have enough
money for the purchase so, after arguing with the cashier, he “grabbed the beer and
walked out.” The employee followed the defendant and told him to return the beer
because he had not paid for it. According to the employee, defendant pushed him.
Defendant testified that he tried to buy a pack of cigarettes and two 40-ounce bottles of
beer but did not have enough money. He and the cashier got into a verbal altercation
when she refused to give him the items and let him return to pay the balance of the bill
the following day. Defendant admitted to taking the beers off the counter, walking out of
the gas station, and throwing the beers into the garbage. He denied pushing the gas
station employee who told him to return the beers. In finding defendant guilty of third

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degree robbery, the Oregon trial court judge credited the employee’s testimony that
defendant pushed him, stated that he “found the defendant not very credible,” and found
“the immediate use of physical force to prevent the taking of the property.”
Below, the trial court concluded that the Oregon robbery trial transcript
“establishes defendant . . . committed a robbery as defined in California: a felonious
taking of personal property in the possession of another from his person or immediate
presence (taking of beer from the store in front of the clerk), and against his will,
accomplished by means of force or fear (pushing the store clerk).”
Defendant contends that the record of conviction does not establish he had the
requisite intent for the conviction to be a strike. We disagree.
Defendant acknowledges that our colleagues in the First District concluded in
People v. Zangari (2001) 89 Cal.App.4th 1436, 1446 that the intent necessary for theft in
both California and Oregon is the common law larceny requirement of intent to
permanently deprive.5 He does not argue that decision was wrongly decided and we find
it persuasive. In convicting defendant of third degree robbery, the Oregon trial court
necessarily concluded that he had the requisite intent for that crime, which is the intent
required for robbery in California. For that reason, defendant’s argument fails.
3. Federal Law Analysis
We turn now to defendant’s federal constitutional argument: that the Sixth
Amendment prohibits sentencing courts from looking beyond the elements of a prior
conviction to determine whether it constitutes a serious or violent felony under the Three
5 In both states, the intent required for robbery is the intent required for theft.
(Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, 826 [“ ‘ “the felonious intent
requisite to robbery is the same intent common to those offenses that, like larceny, are
grouped in the Penal Code designation of ‘theft.’ ” ’ ”]; (State v. Skaggs (1979) 42
Or.App. 763, 765-766 [“[t]he crime of robbery . . . [requires] intent to commit theft, . . .
[which] is present where there is intent to dispose of property ‘under such circumstances
as to render it unlikely that an owner will recover such property.’ ”].)

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Strikes law. Defendant contends that Descamps and Mathis compel the foregoing
conclusion. We are unconvinced.
As discussed above, in Mathis, four Justices expressed the belief that the elements-
based approach set forth in Descamps is constitutionally required. (Mathis, supra, 579
U.S. at p. __[136 S.Ct. at p. 2252].) But four others expressly rejected that view. (Id. at
p. __ [136 S.Ct. at p. 2258] [“Apprendi . . . does not compel the elements based approach.
That approach is required only by the Court’s statutory precedents, which Congress
remains free to overturn.”] (conc. opn. of Kennedy, J.); id. at p. __ [136 S.Ct. at pp. 2263-
2266] (dis. opn. of Breyer, J., joined by Ginsburg, J.); id. at p. __ [136 S.Ct. at p. 2271,
fn. 4] (dis. opn. of Alito, J.). Justice Gorsuch has yet to weigh in on the issue. This is not
to say that Descamps is not the law of the land; it is. But that case was decided in the
context of the ACCA; it did not overrule McGee. And Mathis casts significant doubt on
whether the United States Supreme Court would deem California’s approach, as set forth
in McGee, to be violative of the Sixth Amendment. Given the current jurisprudential
uncertainty, we cannot conclude it would. McGee remains the law in California and we
decline defendant’s invitation to depart from that precedent. Accordingly, we find no
federal law error.
III. DISPOSITION
The judgment is affirmed.

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_________________________________
ELIA, ACTING P.J.
WE CONCUR:
_______________________________
BAMATTRE-MANOUKIAN, J.
_______________________________
MIHARA, J.

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