P. v. Delgado

Filed 1/23/06 P. v. Delgado CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE JOE DELGADO,
Defendant and Appellant.
B180315
(Los Angeles County
Super. Ct. No. YA055467)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Laura C. Ellison, Judge. Affirmed.
William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General of the State of California, Robert R. Anderson,
Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney
General, Robert F. Katz, Supervising Deputy Attorney General, and Robert C. Schneider,
Deputy Attorney General, for Plaintiff and Respondent.
_______________

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Appellant Jesse Joe Delgado was convicted, following a jury trial, of one count of
robbery in violation of Penal Code1
section 211 and one count of commercial burglary in
violation of section 459. The jury found true the allegations that appellant personally
used a deadly or dangerous weapon in the commission of the crimes within the meaning
of section 12022, subdivision (b)(1).
The trial court found true the allegation that appellant had suffered a prior
violation of section 245, subdivision (a)(1), a serious felony conviction within the
meaning of sections 667 and 1170.12, and served a prior prison term within the meaning
of section 667.5, subdivision (b). The court sentenced appellant to the mid-term of three
years on the robbery conviction, doubled to six years pursuant to section 11701.12, plus
five years for the prior prison term pursuant to section 667.5.
Appellant appeals from the judgment of conviction, contending that there is
insufficient evidence to support the trial court's finding that his prior conviction was a
serious felony. We affirm the judgment of conviction.
Facts
Appellant entered a grocery store and concealed several items on his person. He
was observed by a loss prevention officer, who pursued him after he left the store without
paying for the items. Appellant threw a bottle of liquor at the officer, but was eventually
arrested.
Discussion
Appellant contends that the evidence was insufficient to establish that his prior
conviction for a violation of section 245, subdivision (a)(1) was a serious felony within
the meaning of section 1192.7. Specifically, he contends that the documentation offered
by the People is ambiguous and does not show whether a deadly weapon was involved in
1
All further statutory references are to that code unless otherwise indicated.

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the assault and does not show whether great bodily injury was actually inflicted, or by
whom. We see sufficient evidence to show that appellant was convicted of assault with a
deadly weapon.
A violation of section 245, subdivision (a)(1) occurs when a defendant "commits
an assault upon the person of another with a deadly weapon or instrument other than a
firearm or by any means likely to produce great bodily injury." There is no requirement
that great bodily injury actually be inflicted.
Section 1192.7 provides that a felony assault conviction is a serious felony if a
deadly weapon is used in the commission of the assault or if the defendant personally
inflicts great bodily injury on another. (§ 1192.7, subd. (c)(8); People v. Luna (2003) 113
Cal.App.4th 395, 398.) Thus a person who is convicted of felony assault under section
245, subdivision (a)(1) on the basis of aiding and abetting an accomplice who personally
inflicts great bodily injury has not been convicted of a serious felony. Similarly, a person
does not suffer a serious felony conviction when the basis of his felony assault conviction
is the use of force likely to produce great bodily injury which did not actually result in
great bodily injury.
On occasion, a defendant is charged with a violation of section 245, subdivision
(a)(1) using the full language of the statute, or an abstract of judgment for a section 245,
subdivision (a)(1) conviction uses the full language of the statute. When such a
conviction is reviewed at a later date to determine whether it is a serious felony
conviction, it can be unclear whether a deadly weapon was used, or whether the
defendant inflicted great bodily injury. Appellant contends that that is the case here. We
do not agree.
The abstract of judgment shows the crime as "245(a)(1) asslt w dwpn." Appellant
does not dispute that the abbreviated phrase must mean "assault with a deadly weapon."
He made no argument in the trial court that the phrase meant anything else, or that the
People's evidence was in any way insufficient. He now contends, however, that this
phrase does not mean that use of a deadly weapon was the basis of his conviction. He

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argues that it could simply be a generic description of the crime or a general reference to
the statute violated.
To support this argument, appellant points to another document included in the
documents provided by the Department of Corrections, a document bearing the name of
the Federal Bureau of Investigation on its heading. This document refers to appellant's
conviction as "FORCE/ADW NOT FIREARM:GBI." Appellant contends that the use of
the word "force" and the term "GBI" make the underlying nature of his conviction
unclear.
We see no reason to give any weight to the FBI document. There is nothing to
indicate who prepared the document, or why. It is the abstract of judgment that is the
official record of appellant's conviction.
As appellant acknowledges, we have previously found that a similar entry of
"ASSLT GBI W/DLY WPN" was sufficient to prove that a conviction under section 245
was a serious felony within the meaning of section 1192.7 (People v. Luna, supra, 113
Cal.App.4th at pp. 398-399.) He urges us to reconsider this decision as incompatible
with our Supreme Court's decision in People v. Rodriguez (1998) 17 Cal.4th 253. We
see no incompatibility, and thus no reason to reconsider our decision in Luna. We are not
persuaded otherwise by the reasoning of our colleagues in Division 6 in People v.
Banuelos (2005) 130 Cal.App.4th 601.
We also do not agree with appellant that the existence of the FBI document in this
case distinguishes it from the situation before us in People v. Luna, supra. As we state,
supra, we see no reason to give any weight to this document.

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Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,, J.
We concur:
TURNER, P.J.
KRIEGLER, J.

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