PEOPLE v. HALE

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. James Gerald HALE, Defendant and Appellant.

No. D029608.

Decided: March 18, 1999

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Carl H. Horst, Supervising Deputy Attorney General, and Niki Cox Shaffer, Deputy Attorney General, for Plaintiff and Respondent.

James Gerald Hale appeals a judgment following his jury conviction of transportation of more than 28.5 grams of marijuana (Health & Saf.Code, § 11360, subd. (a)) and possession of marijuana for sale (Health & Saf.Code, § 11359), and true findings that he had four prior serious or violent felony convictions within the meaning of Penal Code 1 sections 667, subdivisions (b) through (i) and 1170.12 and one prior prison term within the meaning of section 667.5, subdivision (b).   Hale contends:  (1) the trial court erred by instructing that prior Florida convictions for assault with a deadly weapon and for residential burglary are, as a matter of law, serious or violent felonies within the meaning of sections 667, subdivisions (b) through (i) and 1170.12;  (2) there is insufficient evidence to support true findings that his prior Florida conviction for assault with a deadly weapon and his two prior Florida convictions for residential burglary were serious or violent felony convictions under California's three strikes law (§§ 667, subds. (b)-(i), 1170.12);  and (3) the trial court erred by instructing with CALJIC No. 2.62.   We affirm the judgment, except that we reverse the true findings that Hale was convicted of three prior Florida felony convictions.

FACTUAL AND PROCEDURAL BACKGROUND

In June 1996 Hale drove a Chevrolet Blazer from Mexico to the United States port of entry at San Ysidro, California.   Michael Eddy, an inspector with United States Customs Department (Department), found packages of marijuana surrounded by foam rubber in all four tires.   Each tire contained 10 packages of marijuana.   A total of 132.2 pounds of marijuana was found in the vehicle's tires.

After Hale was arrested and advised of his constitutional rights, he made unsolicited statements to Department's special agent James Sevel.   Hale volunteered the information that his actions were done for his passenger and girlfriend Amanda Dudley, and that there was nothing officers could “get him for” because they could not prove ownership of the vehicle.

The information alleged Hale had suffered four prior serious or violent felony convictions within the meaning of California's three strikes law, including a California residential burglary conviction (§§ 459, 460), a Florida assault with a deadly weapon conviction, and two Florida residential burglary convictions.2

At trial Hale testified that on the evening of the incident he and Dudley went dancing in Tijuana.   They took the trolley to San Ysidro, walked across the border and hired a taxi to take them to Tijuana.   While at a club Hale was approached by a friend named Juan. With him were two men whom Hale had never met.   Hale asked Juan for a ride back to the border, but Juan could not drive because he had been drinking.   One of the other men stated he was going to stay at a Tijuana motel and offered Hale the use of his Blazer to drive back across the border if Hale would leave it in a San Ysidro restaurant parking lot with its key on the floorboard.   The man said he would then pick up his vehicle in the morning.   Hale accepted the man's offer.   Hale noticed the vehicle “had a bumpy ride,” which he believed was caused by the vehicle's suspension or wheel balance.   Hale denied knowing there was marijuana in the vehicle.

The trial court sentenced Hale under the three strikes law to 25 years to life for transportation of more than 28.5 grams of marijuana with a consecutive one-year enhancement for a prior prison term (§ 667.5, subd. (b)), for a total term of 26 years to life.3

Hale timely filed a notice of appeal.

DISCUSSION

IThe Trial Court's Instructions

Hale contends the trial court erred by instructing the jury that Florida convictions for assault with a deadly weapon and for residential burglary were, as a matter of law, serious or violent felony convictions under sections 667, subdivisions (b) through (i) and 1170.12.   He asserts that this issue was one of fact for the jury's determination rather than a question of law for the trial court's determination.

A

A prior serious or violent felony conviction within the meaning of California's three strikes law includes a conviction in another jurisdiction for an offense that includes all of the elements of a serious or violent felony proscribed by California law.  (§§ 667, subd. (d)(2), 1170.12;  People v. Hazelton (1996) 14 Cal.4th 101, 109, 58 Cal.Rptr.2d 443, 926 P.2d 423.)

 A defendant has a statutory right to a jury trial on the truth of prior conviction allegations.  (People v. Wiley (1995) 9 Cal.4th 580, 589, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   Section 1158 states:

“Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must ․ find whether or not he has suffered such previous conviction.”

At the time of Hale's 1996 arrest and trial in this case, section 1025 provided that “the question whether or not [a defendant] has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty․”  In People v. Wiley, supra, at p. 589, 38 Cal.Rptr.2d 347, 889 P.2d 541, the court stated:  “By their terms, sections 1025 and 1158 grant a defendant the right to have the jury determine only whether he or she ‘suffered’ the alleged prior conviction․”

B

Over Hale's objection, the trial court ruled that it was a question of law for the court to decide whether Florida's criminal statutes on assault with a deadly weapon and residential burglary were substantially similar to California's statutes on those offenses.   The court found as a matter of law that Florida's statutes were “similar in all essential respects” to California's statutes for purposes of the three strikes law.   The trial court noted that it was a question of fact for the jury to determine whether Hale was the person who suffered the three Florida convictions.

The trial court instructed the jury:

“You are instructed that a conviction for aggravated assault with a deadly weapon in the State of Florida is a serious felony within the meaning of Penal Code section[s] 667(b) through (i) and 1170.12 as a matter of law and the Florida statute under which the defendant was convicted is as a matter of law sufficiently similar to the statute in California defining the crime of assault with a deadly weapon.

“You are further instructed that a conviction for burglary of a dwelling in the State of Florida is a serious felony within the meaning of California Penal Code section[s] 667(b) through (i) and 1170.12 as a matter of law;  and the Florida statute under which the defendant was twice convicted is as a matter of law sufficiently similar to the statute in California defining the crime of burglary of a residence.”

The jury found true the allegations that Hale suffered the three prior Florida convictions alleged to be serious or violent felonies within the meaning of California's three strikes law.4

C

Currently before the California Supreme Court in People v. Kelii (1998) 63 Cal.App.4th 854, 73 Cal.Rptr.2d 917 (review granted July 29, 1998 (S070960)) is the issue of whether it is a question of law for a trial court or a question of fact for a jury to decide if a prior conviction is a serious or violent felony conviction under the three strikes law.5

 We conclude that whether a prior conviction constitutes a serious or violent felony conviction under California's three strikes law is a question of law for a trial court rather than a jury to decide.   In People v. Wiley, supra, 9 Cal.4th 580, 38 Cal.Rptr.2d 347, 889 P.2d 541, the court determined that it is a question for a trial court rather than a jury to decide whether multiple prior convictions are “brought and tried separately” for purposes of a sentence enhancement allegation under section 667, subdivision (a).   (Wiley, supra, at p. 592, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   The court noted that there is no federal or state constitutional right to a jury determination of sentencing issues.  (Id. at pp. 585-586, 38 Cal.Rptr.2d 347, 889 P.2d 541.)  “[T]he ability of courts to make factual findings in conjunction with the performance of their sentencing functions never has been questioned.”  (Id. at p. 586, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   However, the court noted that California has created a statutory right to a jury determination of the truth of prior conviction allegations, but that those statutes “are limited in nature.”  (Id. at p. 589, 38 Cal.Rptr.2d 347, 889 P.2d 541.)

Sections 1025 and 1158 merely “grant a defendant the right to have the jury determine only whether he or she ‘suffered’ the alleged prior conviction, and not whether multiple prior convictions were separately brought and tried.”  (People v. Wiley, supra, 9 Cal.4th at p. 589, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   The jury in Wiley found that the defendant had suffered the prior convictions, thereby fulfilling the requirements of sections 1025 and 1158.  (Id. at p. 590, 38 Cal.Rptr.2d 347, 889 P.2d 541.)  “The additional question whether the charges leading to these two prior convictions had been ‘brought and tried separately’ within the meaning of section 667(a)(1) properly was a matter for the court, because that question is largely legal in nature.  ․ [R]esolution of this issue frequently depends upon the interpretation of complex and detailed provisions of California criminal procedure.  [Citations.]”  (Ibid., italics added.)   To the extent “ underlying ‘facts' ․ are relevant to the determination as to whether charges [leading to prior convictions] have been ‘brought and tried separately,’ ․ such facts generally are readily ascertainable upon an examination of court documents.   This is the type of inquiry traditionally performed by judges as part of the sentencing function.”  (Ibid.) The court therefore held that “the issue whether multiple prior convictions alleged under section 667(a)(1) were ‘brought and tried separately’ is to be determined by the trial court.”  (Id. at p. 592, 38 Cal.Rptr.2d 347, 889 P.2d 541.)

 We conclude that Wiley is analogous to the instant issue.   The question whether a foreign criminal statute describes a “serious” or “violent” felony under California's three strikes law is legal in nature.  (Wiley, supra, 9 Cal.4th at p. 590, 38 Cal.Rptr.2d 347, 889 P.2d 541.)   The three strikes law is unquestionably complex and its listing of qualifying “strikes” is detailed and involves many cross-references to and interpretations of other statutes.   A determination whether a foreign criminal statute or offense includes all elements of a “strike” under the three strikes law generally requires legal analysis beyond the education or training of most jurors.   A jury cannot reasonably be expected to examine the intricacies of California's three strikes law and then compare “strike” elements to foreign criminal statutes or offenses.   We conclude that the determination of whether a foreign criminal statute or conviction is equivalent to or constitutes a serious or violent felony under the three strikes law is appropriately made by a trial court as part of its sentencing function.   The trial court in this case therefore properly decided that it was empowered to determine as a question of law whether the Florida offenses of assault with a deadly weapon and residential burglary were serious or violent felonies under the three strikes law.6

II

There Is Sufficient Evidence to Support the Finding That Hale Had a Second Prior Strike Conviction

Hale contends there is insufficient evidence in the record to support the true findings that his prior Florida convictions for assault with a deadly weapon and residential burglary constituted prior strikes under California's three strikes law.   However, he does not contend there is insufficient evidence to support the jury's true finding on the allegation that his prior California conviction for residential burglary constituted a prior strike conviction.   We therefore review the record for sufficient evidence to support only one prior Florida strike to sustain Hale's sentencing for the instant offense as a third strike under California law.   The true findings on the two remaining allegations of prior strike convictions would be surplusage because the trial court declined to strike any of the prior strike conviction allegations found true by the jury.

A

The jury found true the allegation that on November 8, 1991, Hale suffered a conviction in Florida for assault with a deadly weapon, which the court instructed constituted a serious or violent felony within the meaning of California's three strikes law.   To prove the allegation, the prosecution introduced in evidence copies of the information filed against Hale in that Florida case and Hale's plea of guilty or nolo contendere to the charge.   The Florida information was filed on September 19, 1991, and alleged that Hale “ma [d]e an assault upon [the victim], in that [Hale] intentionally threatened by word or act to do violence to [the victim], coupled with an apparent ability to do so, and did some act which created in [the victim] a well[-]founded fear that violence was imminent, and in committing said assault used a deadly weapon, to-wit:  [a] knife, contrary to Section 784.021, Florida Statute․”  (Italics added.)   On November 8, 1991, Hale signed a form pleading guilty or no contest to the charges against him, expressly admitting there was a factual basis for the charges.

B

 Section 667, subdivision (d)(2) provides that a prior foreign felony conviction is a serious or violent felony under the three strikes law if the conviction “includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.”   Section 1192.7, subdivision (c)(23) provides that a serious felony is “any felony in which the defendant personally used a dangerous or deadly weapon.”   A felony conviction for assault with a deadly weapon during the commission of which the defendant personally used a dangerous or deadly weapon therefore constitutes a prior strike under the three strikes law.7  (People v. Houck (1998) 66 Cal.App.4th 350, 354, 77 Cal.Rptr.2d 837.)

 The entire record of a prior conviction may be considered in determining whether that conviction includes all of the elements of a defined “serious” felony.  “[I]n determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction.”  (People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)   This principle applies equally to allegations of prior foreign convictions.  (People v. Myers (1993) 5 Cal.4th 1193, 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301.)  “Only if the record [does] not disclose the facts of the offense actually committed would the court presume that it rested only on the least statutory elements necessary for a conviction.   [Citation.]”  (Id. at p. 1200, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

 Exactly what evidence constitutes the “record of conviction” has not been fully established.  (People v. Houck, supra, 66 Cal.App.4th at p. 355, 77 Cal.Rptr.2d 837.)  “However, the [California] Supreme Court has stated that a trier of fact may consider the ‘entire record of the proceedings leading to imposition of judgment on the prior conviction’ in determining whether a prior conviction qualifies as a strike.  [Citation.]  In applying this standard, the appellate courts have generally held that documents considered within the record on appeal are part of the ‘record of conviction’ for the purposes of identifying a strike, at least where the underlying conviction resulted from a guilty plea.  [Citations.]”  (Ibid.) In particular, “[a]n information is admissible to show that a prior conviction is a ‘serious felony.’   [Citations.]”  (People v. Winslow, (1995) 40 Cal.App.4th 680, 689, 46 Cal.Rptr.2d 901.)   In People v. Carr (1988) 204 Cal.App.3d 774, 251 Cal.Rptr. 458, the court concluded that “the entire record of conviction” included the information filed against the defendant in the prior case and the defendant's change of plea form in which he pleaded guilty to the charges in the information.  (Id. at p. 778, 251 Cal.Rptr. 458.)   In People v. Moenius (1998) 60 Cal.App.4th 820, 70 Cal.Rptr.2d 579, the court concluded that the defendant's guilty plea to the charge of residential burglary set forth in the information constituted substantial evidence that the defendant's prior conviction was a serious felony under section 1192.7.  (Id. at pp. 824-827, 70 Cal.Rptr.2d 579;  see also People v. Harrell (1989) 207 Cal.App.3d 1439, 1444-1446, 255 Cal.Rptr. 750.)

C

 We conclude that the entire record of Hale's prior conviction in Florida for assault with a deadly weapon includes the information filed against him and the form he signed in which he pleaded guilty or nolo contendere to the charges and in effect admitted the allegations contained in the information.  (People v. Lewis (1996) 44 Cal.App.4th 845, 855, 52 Cal.Rptr.2d 338[“[W]e are required to assume the asserted facts [in the information] were ․ true” because the defendant pleaded guilty to the charges].)   In this case, Hale pleaded guilty or no contest to the charges in the information that he committed an assault and “in committing said assault used a deadly weapon, to-wit:  [a] knife.”   Hale therefore expressly admitted he personally used a deadly weapon in committing the Florida assault.   Evidence is substantial evidence if “reasonable, credible, and of solid value-such that a reasonable trier of fact could find” the allegations true beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738;  People v. Williams (1996) 50 Cal.App.4th 1405, 1413, 58 Cal.Rptr.2d 517.)   Accordingly, we conclude there is sufficient evidence to support the true finding that Hale's prior Florida assault conviction constituted a serious felony within the meaning of the three strikes law.

D

We need not address the issue whether there is sufficient evidence to support the true findings that Hale's two prior convictions for residential burglaries in Florida constituted serious or violent felonies under the three strikes law;  two other prior strikes were found true and were sufficient for the trial court to consider Hale's instant offense as a third strike under California's three strikes law.8

E

 We have noted that whether Hale was the person who had been convicted in Florida of the alleged prior felony offenses was a question for jury resolution.9  We have also determined there was sufficient evidence to support the jury finding that Hale suffered a prior Florida conviction for assault with a deadly weapon.   However, we raised the issue of whether the court's instructions to the jury on whether Hale was convicted of the Florida offenses were proper and have received and reviewed supplemental briefing on this issue.

The court instructed the jury that it was the jury's function to determine the truth of the allegations that Hale had been convicted of the Florida offenses.   However, the court then instructed the jury as follows:

“[T]he Florida statute under which [Hale] was convicted is as a matter of law sufficiently similar to the statute in California defining the crime of assault with a deadly weapon.

“[T]he Florida statute under which [Hale] was twice convicted is as a matter of law sufficiently similar to the statute in California defining the crime of burglary of a residence.”

By phrasing the instructions as it did, the court informed the jury there had been three Florida convictions and identified the Florida offenses as those for which Hale had been convicted.   The jury therefore received confusing and inconsistent instructions.   The jury was instructed to determine whether Hale was convicted of those offenses of which he was convicted.

In closing argument the People repeated the error.   The prosecutor properly told the jury that it was to determine whether Hale suffered the alleged Florida convictions.   However, the prosecutor then stated that “the court has instructed you already that the laws in the State of Florida under which [Hale has] been convicted are similar to the laws of the State of California․”

 The People do not contest the instructional error in identifying the Florida offenses in question as those for which Hale had been convicted.   However, the People argue that Hale waived any objection to the instructions by acquiescing to their wording.   Hale initially objected to the prior conviction instructions on the ground that the jury, not the trial court, should determine whether the Florida offenses were serious or violent felonies under section 667, subdivisions (b) through (i).   The court overruled the objection and asked Hale if he otherwise objected to the wording of the instructions.   Hale stated the wording was “fine.”   At the same time, however, Hale reiterated that he objected “to anything at all that has to do with the Florida convictions.”

 We conclude that for preservation of the issue on appeal, Hale made sufficiently clear to the court that he objected to the instructions on the Florida convictions.   Although he did not articulate the relevant basis for the objection, the court was aware an objection to the instructions had been made.   Furthermore, to the extent the instructions stated Hale had been convicted of the Florida offenses, they affected Hale's substantial rights because they removed from jury consideration the entire issue of Hale's prior convictions.   Therefore, no objection was necessary to preserve the issue on appeal.  (See United States v. Olano (1993) 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508;  People v. Andersen (1994) 26 Cal.App.4th 1241, 1249, 32 Cal.Rptr.2d 442.)   An instruction that removes from jury consideration an element of the charged offense violates a defendant's California and United States constitutional rights.  (People v. Flood (1998) 18 Cal.4th 470, 479-480, 76 Cal.Rptr.2d 180, 957 P.2d 869.)   Similarly, an instruction that removes from jury consideration the truth of an allegation that the defendant has been convicted of a prior serious or violent felony violates a defendant's California statutory right to a jury trial on that issue (§§ 1025, 1158) and results in a miscarriage of justice.  (See People v. Ernst (1994) 8 Cal.4th 441, 449, 34 Cal.Rptr.2d 238, 881 P.2d 298.)   We conclude that the propriety of the instructions on the prior Florida convictions is cognizable on appeal.

By instructing the jury that Hale had been convicted of the three Florida offenses and that the three Florida convictions were convictions of serious or violent felonies under section 667, subdivisions (b) through (i), the trial court removed from jury consideration the allegations of three prior strikes.   Hale was entitled to jury consideration of these allegations.   Although the jury was also instructed it was to determine the truth of these allegations and that if it had a reasonable doubt as to their truth it must find the allegations not true, how could the jury have a reasonable doubt after the court instructed it that the allegations were true?   We conclude that the court essentially instructed the jury to find the allegations true.   The instructions therefore improperly relieved the prosecution of the burden of proving beyond a reasonable doubt each element of the alleged prior conviction allegations.

 The issue remains whether the erroneous instructions require reversal or are subject to prejudicial error considerations.   The instructions directed a true finding on the prior conviction allegations, and left no issue for the jury to decide.   Under these circumstances, the instructional error is a reversible miscarriage of justice.  (People v. Valentine, 70 Cal.App.4th 1168, 83 Cal.Rptr.2d 161.)   As the court stated in Sullivan v. Louisiana (1993) 508 U.S. 275 at page 277, 113 S.Ct. 2078, 124 L.Ed.2d 182, “although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he [or she] may not direct a verdict for the State, no matter how overwhelming the evidence.”   An instructional error that, as here, is equivalent to removing the entire prior conviction allegation from the jury is a structural rather than a trial error and is reversible as a miscarriage of justice even though there is no California or federal constitutional right to a jury trial on the issue.  (See People v. Valentine, supra, 70 Cal.App.4th 1168, 83 Cal.Rptr.2d at pp. 162-164.)   The true findings that Hale was convicted of three prior Florida felony convictions are reversed.10

III

Any Error in Instructing With CALJIC No. 2.62 Was Harmless

 Hale contends the trial court erred by instructing with CALJIC No. 2.62 on inferences that may reasonably be drawn from any failure by him to explain or deny evidence against him that he could reasonably be expected to explain or deny.   He asserts that he testified on how he came to possess the vehicle and denied any knowledge of the marijuana found in its tires;  therefore, he argues, there was no evidentiary basis to support a CALJIC No. 2.62 instruction.

The trial court instructed with CALJIC No. 2.62:

“In this case, the defendant has testified to certain matters.   If you find the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of the facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence as indicated that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.

“The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.

“If a defendant does not have the knowledge that he would need to deny or explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence.”

Citing People v. Mask (1986) 188 Cal.App.3d 450, 453, 233 Cal.Rptr. 181, the People assert that CALJIC No. 2.62 was properly given because Hale gave a bizarre or implausible explanation for his possession of the vehicle and his lack of knowledge of the marijuana found in it.

Assuming arguendo the trial court erred by giving CALJIC No. 2.62, we conclude it is not reasonably probable Hale would have received a more favorable result had the trial court not given that instruction.   (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   We adopt the reasoning of the court in People v. Ballard (1991) 1 Cal.App.4th 752, 2 Cal.Rptr.2d 316:

“Assuming this instruction should not have been given, any error was not prejudicial.   CALJIC No. 2.62 does not direct the jury to draw an adverse inference.   It applies only if the jury finds that the defendant failed to explain or deny evidence.   It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference;  and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt).   It is not reasonably probable a more favorable verdict would have resulted if the instruction had not been given.   [Citations.]”  (Id. at pp. 756-757, 2 Cal.Rptr.2d 316.)

In this case it is not reasonably probable Hale was prejudiced.   CALJIC No. 2.62 allowed the jury to determine whether its provisions applied, depending on whether the jury found that Hale neither explained nor denied evidence of which he would reasonably be expected to have knowledge.   If no failure to explain or deny was found, CALJIC No. 2.62 instructed the jury it would be unreasonable to draw an unfavorable inference against Hale. In any event, the circumstantial evidence of Hale's guilt was highly incriminating and the jury had good reason to find incredible Hale's version of events and his purported lack of knowledge.   Any error in giving CALJIC No. 2.62 was harmless.

DISPOSITION

The judgment that Hale had been convicted in Florida of three prior violent or serious felonies is reversed and the sentence vacated.   In all other respects the judgment is affirmed.   The matter is remanded to the trial court for further proceedings consistent with People v, Monge (1997) 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121 and resentenceing.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   The record on appeal does not contain a copy of the second amended information setting forth these allegations.   However, the parties do not dispute the fact that a second amended information was filed with these allegations.   We assume the parties' descriptions of the second amended information are accurate.

3.   The trial court sentenced Hale to 25 years to life for possession of marijuana for sale and stayed execution of that sentence under section 654.

4.   The jury also found true the allegation that Hale suffered a prior California conviction for residential burglary alleged to be a serious or violent felony within the meaning of California's three strikes law.

5.   Hale cites no case deciding this issue, and the California Supreme Court recently stated that it is an open question.  (People v. Woodell (1998) 17 Cal.4th 448, 460-461, mod.   17 Cal.4th 969b, 71 Cal.Rptr.2d 241, 950 P.2d 85 [“(Here the issue was presented to the jury.   We express no view regarding the respective roles of the court and jury.   [See Pen.Code, § 1025.] )”].)

6.   Because Hale does not dispute the fact the jury correctly found true the allegation he suffered a prior California serious or violent felony within the meaning of the three strikes law, only one other prior strike conviction need be found true by the jury for punishment of Hale's instant conviction as a third strike offense.   Because we conclude that a Florida conviction for assault with a deadly weapon constitutes a prior strike conviction, we need not address whether two Florida convictions for residential burglary also constitute strikes under California's three strikes law.

7.   A section 245, subdivision (a)(1) conviction for assault with a deadly or dangerous weapon does not necessarily constitute a serious felony under section 1192.7.   It must also be proved that the defendant personally used a deadly or dangerous weapon because a defendant can be convicted of a section 245 offense by merely aiding and abetting the person who used the deadly or dangerous weapon.  (People v. Davis (1996) 42 Cal.App.4th 806, 814, 49 Cal.Rptr.2d 890;  People v. Rodriguez (1998) 17 Cal.4th 253, 261-262, 70 Cal.Rptr.2d 334, 949 P.2d 31;  People v. Woodell, supra, 17 Cal.4th at p. 453, 71 Cal.Rptr.2d 241, 950 P.2d 85.)

8.   The trial court denied Hale's request to strike his three prior Florida strikes.   We therefore presume that the trial court would not have stricken Hale's prior strike arising from his Florida assault conviction even were there insufficient evidence to support true findings that his two Florida residential burglary convictions were strikes under the three strikes law.

9.   Effective January 1, 1998, section 1025, subdivision (c) was amended to provide that ‘․ the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury.’   Hale was convicted and sentenced prior to the effective date of this amendment.

10.   Perhaps the difficulty in the jury instructions on the prior Florida convictions arose from a well-intended effort to fully inform the jury of the respective functions of the judge and jury.   However, it appears unnecessary to explain to the jury the relative functions of the judge and jury.

McDONALD, J.

HALLER, Acting P.J., and McINTYRE, J., concur.

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