P. v. Marchand

Filed 5/15/07 P. v. Marchand CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
KEITH RENE MARCHAND,
Defendant and Appellant.
2d Crim. No. B180931
(Super. Ct. No. BA219176)
(Los Angeles County)
In a prior appeal, we affirmed the conviction of appellant, Keith Rene
Marchand, for unlawfully driving and taking a vehicle, and evading an officer in
disregard for the safety of others. (Veh. Code, §§ 2800.2, subd. (a), 10851, subd. (a).)
We remanded the matter for a determination of whether his prior Nevada robbery
conviction qualifies as a "strike" under California's Three Strikes law. (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court found that the Nevada
robbery qualifies as a strike and resentenced Marchand accordingly. Marchand appeals.
Marchand contends the prior Nevada robbery does not qualify as a strike in
California because the crime of robbery in Nevada does not require three of the elements
necessary to be convicted of robbery in California: 1) specific intent to permanently
deprive the victim of his property, 2) creating immediate fear in the victim, and 3)
asportation of the goods. The trial court found that Marchand's conduct in committing

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the Nevada robbery would constitute robbery in California. Substantial evidence
supports the court's findings.
Marchand also contends that the court improperly sentenced him to the
upper term without a jury. The United States Supreme Court granted Marchand's petition
for writ of certiorari, vacated the judgment, and remanded the case for further
consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]
overruling People v. Black (2005) 35 Cal.4th 1238 in part.1 We once again affirm, but
remand for resentencing in light of Cunningham.
FACTS and PROCEDURAL HISTORY
Marchand was charged with various Vehicle Code offenses, and the special
allegation he suffered a "strike" within the meaning of the Three Strikes law due to his
prior Nevada robbery conviction. Marchand was convicted of the Vehicle Code offenses
and admitted he suffered the strike. The trial court found a factual basis for the
admission and sentenced Marchand to six years – double the upper term for evading an
officer – based on the prior strike conviction. (Pen. Code, § 667, subds. (b)-(i), esp.
(e)(1).)
On appeal, we affirmed his conviction on the Vehicle Code offenses, but
remanded the matter to the trial court to determine whether the prior Nevada robbery
conviction would constitute robbery in California so as to support sentencing based on
the admitted strike.
Marchand failed to appear at his arraignment on the Nevada robbery
charge, which had been set for March 4, 1992. A bench warrant was issued for his arrest.
On November 13, 1995, Marchand was arrested in Los Angeles and extradited to
Nevada. Marchand pled guilty "to the crime of ROBBERY (Felony), committed on the
27th day of January, 1992, in violation of NRS 200.380 . . . ." The Nevada court
1 We take judicial notice of appellant's petition for writ of certiorari, and note that the
only issue addressed therein is "Whether California's Determinate Sentencing Law, by
permitting sentencing judges to impose enhanced sentences based on their determination
of facts not found by the jury or admitted by the defendant, violates the Sixth and
Fourteenth Amendments."

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sentenced him to 5 years in prison, ordered him to pay restitution in the amount of
$2,878.35, and entered judgment.
The trial court considered the certified record of the Nevada conviction,
including the criminal complaint, the bench warrant, and the judgment of conviction for
the robbery. Based on these documents, the trial court concluded that Marchand's
conduct would constitute the crime of robbery in California. The court found that he had
the specific intent at the time of the robbery to permanently deprive the victim of the
money he took by threat of force. The court relied on the fact that he fled Nevada and
several years passed before he was arrested on the arrest warrant in Los Angeles.
Furthermore, the court noted, after he pled guilty to the robbery, the Nevada court
ordered him to pay restitution.
DISCUSSION
"A prior conviction for purposes of the three strikes law includes 'A
conviction in another jurisdiction for an offense that, if committed in California, is
punishable by imprisonment in the state prison. A prior conviction of a particular felony
shall include a conviction in another jurisdiction for an offense that includes all of the
elements of the particular felony as defined in subdivision (c) of [Penal Code] Section
667.5 or subdivision (c) of [Penal Code] Section 1192.7.'" (People v. Laino (2004) 32
Cal.4th 878, 895; People v. Avery (2002) 27 Cal.4th 49, 53; Pen. Code, §§ 667, subd.
(d)(2), 1192.7, subd. (c).) Penal Code section 667.5, subdivision (c)(9) provides, in
pertinent part, that for the purposes of the section a "'violent felony' shall mean any of the
following: . . . [¶] (9) Any robbery."
In California, "[r]obbery is defined as the taking of personal property of
some value, however slight, from a person or the person's immediate presence by means
of force or fear, with the intent to permanently deprive the person of the property."
(People v. Marshall (1997) 15 Cal.4th 1, 34, italics added; People v. Harris (1994) 9
Cal.4th 407, 415; Pen. Code, § 211.) At the time of Marchand's conviction, the Nevada
statute read: "[r]obbery is the unlawful taking of personal property from the person of
another, or in his presence, against his will, by means of force or violence or fear of

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injury, immediate or future, to his person or property, or the person or property of a
member of his family, or of anyone in his company at the time of the robbery. A taking
is by means of force or fear if force or fear is used . . . ." (Nev. Stats., § 200.380, subd.
(1), italics added; Litteral v. State (1981) 97 Nev. 503, 505-508 [634 P.2d 1226],
disapproved on other grounds in Talancon v. State (1986) 102 Nev. 294, 301 [721 P.2d
764].)
Marchand contends the Nevada conviction for robbery does not qualify as a
strike in California because Nevada's robbery statute does not require three of the
elements needed to sustain a robbery conviction in California: 1) fear of present harm, 2)
asportation of the property taken, and 3) specific intent to permanently deprive the victim
of the property taken. (Litteral v. State, supra, 634 P.2d 1226.)
In determining whether a prior foreign conviction constitutes a strike, the
trial court is not limited to matters necessarily established by the prior judgment, or to the
least adjudicated elements of the crime. Instead, the court may review the entire record
to ascertain whether the defendant's conduct in committing the foreign crime would
qualify as a strike conviction in California, regardless of the differences between the
statutory definitions of the crime. (People v. Woodell (1998) 17 Cal.4th 448, 452-455;
accord, People v. Avery, supra, 27 Cal.4th at p. 53; People v. Riel (2000) 22 Cal.4th
1153, 1204-1205; Pen. Code, §§ 667, subd. (d)(2), 1170.12, subd. (b)(2); and see People
v. Guerrero (1988) 44 Cal.3d 343, 355 [burglary of a residence]; Evid. Code, §§ 452,
subd. (d), 453 [on judicial notice of official court records].) In doing so, the court may
consider the allegations set forth in the foreign accusatory pleading and the defendant's
plea of guilty or nolo contendere to those charges. (Guerrero, supra, at pp. 345, 356;
People v. Laino, supra, 32 Cal.4th at pp. 895-896 [guilty plea constitutes a conviction].)
The trial court found that because Marchand absconded for three years,
pled guilty to the Nevada robbery, and was ordered to pay restitution, there is no
reasonable doubt that he had the specific intent to permanently deprive the victim of his
money at the time he committed the offense, and that he did so by force or fear. (See
People v. Marshall, supra, 15 Cal.4th at p. 34 [requisite intent at time of theft].) The

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court was also "convinced beyond a reasonable doubt that when that property was taken,
it was taken to permanently deprive [the victim of his property.]" (People v. Avery,
supra, 27 Cal.4th at pp. 54-57; and see People v. Riel, supra, 22 Cal.4th at pp. 1205-
1206.)
Substantial evidence supports these factual findings. Marchand pled guilty
to the robbery committed on January 27, 1992. The only charge to which his plea relates
is count V which states, in pertinent part, that he "did, on or about January 27, 1992, then
and there willfully, unlawfully, and feloniously take personal property, to-wit: lawful
money of the United States, from the person of JEFFREY JOHNSRUDE, or in his
presence, . . . said Defendant using a deadly weapon, to-wit: a firearm, during the
commission of said crime." (People v. Guerrero, supra, 44 Cal.3d at pp. 345, 356 [courts
may consider entire record including foreign accusatory pleading and defendant's plea];
see also People v. Blackburn (1999) 72 Cal.App.4th 1520, 1526-1527, 1531.) Thus, the
record establishes that Marchand committed the crime by the present use of force or fear
of force. The Nevada court's minutes and its bench warrant of March 10, 1992, show that
nearly three years elapsed between his arraignment on the charges and his arrest on the
warrant in Los Angeles on November 13, 1995. Marchand's act of absconding from the
state of Nevada establishes both asportation of the property taken, and his specific intent
to permanently deprive the victim of that property. (See People v. Avery, supra, 27
Cal.4th at pp. 54-57.) After he was extradited, Marchand pled guilty to one count of
robbery, and the court ordered restitution.
We conclude that the Nevada conviction constitutes a strike for purposes of
sentencing under the Three Strikes law. (See People v. Woodell, supra, 17 Cal.4th at pp.
460-461 [appellate opinion logically showed what trial court found as facts, based on
court documents, to establish personal use of a weapon, the basis for a qualifying theory
to support a strike].)
Upper Term Sentence
Marchand contends the trial court should have reduced his sentence to the
middle term of two years because that is the maximum sentence which could have been

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imposed without additional findings by the original jury. He contends that the sentence
was based on sentencing factors not tried by a jury in violation of his Sixth Amendment
right to jury trial and due process. Subsequent to the filing of the case, the United States
Supreme Court invalidated the portion of California's Determinate Sentencing Law that
permits a judge to impose an upper term sentence based on aggravating sentencing
factors that are not determined by a jury. (Cunningham v. California, supra, 127 S.Ct.
856.) The United States Supreme Court granted Marchand's petition for certiorari and
remanded the matter for further consideration in light of Cunningham.
Accordingly, we vacate the sentence and remand for resentencing
consistent with Cunningham. The trial court is directed to prepare an amended abstract
of judgment in accordance with this opinion and deliver it to the Department of
Corrections. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.

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Paul M. Enright, Judge
Superior Court County of Los Angeles
______________________________
Keith R. Marchand, in pro. per.; Sally P. Brajevich, under appointment by
the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H.
Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney
General, for Plaintiff and Respondent.

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