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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Juan MEDINA, Defendant and Appellant.

No. B171348.

Decided: July 26, 2005

John A. Colucci, 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, Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

Juan Medina appeals from a judgment entered upon his conviction by jury of assault on a public official (Pen.Code, § 217.1, subd. (a), count 1),1 resisting an executive officer (§ 69, count 2), and making criminal threats (§ 422, count 3).   Appellant admitted having suffered seven prior felony strikes within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).  The trial court sentenced him to consecutive 25-year-to-life terms on counts 1 and 3, and a concurrent 25-year-to-life term on count 2. Appellant contends that (1) the trial court erred in sentencing him as a “three-striker,” as he did not stand convicted of six of the seven prior charges when the current offenses occurred, (2) he suffered ineffective assistance of counsel in the event that it is determined that his admission of the prior convictions forfeited his challenge to whether they were strikes, (3) there was reversible prosecutorial misconduct in closing argument and trial examination of the victim, denying appellant a fair trial and due process of law, (4) the trial court erred in imposing a 25-year-to-life sentence on count 2 after striking all prior convictions with respect to that count, (5) the trial court abused its discretion in denying appellant's Romero2 motion, (6) appellant's sentence constituted cruel and unusual punishment, and (7) the trial court erred in limiting appellant's presentence conduct credits to 15 percent.

We reverse appellant's sentence on count 2, modify his conduct credits and otherwise affirm the judgment.


On January 29, 2003, in the Long Beach courthouse of the Los Angeles Superior Court, trial began in the prosecution of appellant, in case No. NA054131 (Case No. NA054131), for five counts of attempted kidnapping during commission of a carjacking (§§ 664/209.5) and one count of attempted carjacking (§§ 664/215).   Erwin Petilos, who did not know appellant before the prosecution, was the prosecuting deputy district attorney.   The trial resulted in jury verdicts of guilty on all counts and an admission by appellant of one prior felony conviction.   The trial court sentenced appellant to a state prison term of 37 years eight months.   That matter is now on appeal and is decided in a separate opinion filed concurrently herewith.

During the above trial, an incident occurred that led to the current charges.   That incident was described at the trial in this matter as follows.   On February 4, 2003, Petilos was waiting for the verdict of the deliberating jury in Case No. NA054131.   The jury indicated that it had reached a verdict, and Petilos returned to the courtroom.   The clerk read the jury's guilty verdicts as to all counts and special allegations.   Before either side requested that the jury be polled, appellant threw a chair towards Deputy Sheriff Andrew Escalona, the courtroom bailiff who was standing behind him, ran towards Petilos from behind and began hitting him in the head with his fists.   Petilos suffered bruises, but no permanent injuries.

At the time of the attack, a second deputy sheriff was standing next to Deputy Escalona and a third deputy was posted at the courtroom door.   Deputy Escalona ran towards appellant and tackled him, pinning him against the jury box divider wall.   The other two deputies came to his aid.   Deputy Escalona asked appellant to relax, but it felt to him as if appellant was trying to push off the wall.   Appellant did not cooperate in being handcuffed, although he did not struggle.   Deputy Escalona picked up appellant, and they “went straight to the floor.”   After a radio call, other deputies entered the courtroom and took appellant back to a lock-up.   Deputy Escalona injured his wrist tackling appellant.

After the incident, the trial judge placed the jury in the deliberation room, as it had not yet been polled.   After order was restored, the jury was brought into the courtroom and polled in appellant's absence, all jurors acknowledging that the verdict was theirs.   The matter was continued to March 12, 2003.

On the continued date, several motions were heard and the matter continued for sentencing.   As the date was being selected, appellant acted upset, aggressive and angry, made eye contact with Petilos, “flipped [him] off” and said, “You are a dead man.   I promise you that.   You are fucking dead.   You are going to burn in hell, bitch.”

Petilos was not frightened in the courtroom when appellant made these threats because appellant was handcuffed and shackled with deputies around.   But when he left the courtroom and calmed down, he became frightened because appellant was affiliated with the Compton Varrio T-flats Gang and the Surenos gang, a “southsiders sort of jailhouse gang.”   From Petilos's assignment to the hardcore gang unit, he was aware that most gang members in custody maintained connections outside of jail who could be called upon to arrange attacks on people outside of jail.   Petilos feared such an attack, believing that appellant was particularly dangerous because he had nothing to lose in light of the lengthy sentence he faced.

After this incident, Petilos took precautions by obtaining a secure parking space, obtaining a gun and a carry permit, having Long Beach Police Department officers check on his home and having his personal information removed from California government computers.   He continued to prosecute Case No. NA054131 and asked for the maximum possible sentence for appellant.

During trial in this matter, appellant admitted his seven prior convictions, within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and section 667, subdivision (a)(1).   The trial court sentenced him to consecutive 25-year-to-life terms on counts 1 and 3, pursuant to section 667(e)(2)(A).   It imposed the consecutive terms, finding in aggravation that the charges in the case involved violence and the threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)), that appellant exhibited a pattern of violent conduct indicating a danger to society (Cal. Rules of Court, rule 4.421(b)(1)), and appellant's prior convictions were numerous and increasing in seriousness (Cal. Rules of Court, rule 4.421(b)(2)).   With respect to count 2, the trial court exercised its discretion under Romero, to strike the prior strikes “so as to come within the dictates of ․ section 667(c)(6),” struck the priors with regard to the section 667, subdivision (a) enhancement and imposed a concurrent 25-year-to-life term.


I. Appellant's convictions in Case No. NA054131 were prior felony strikes.

 Appellant contends that his convictions of five counts of attempted kidnapping during commission of a carjacking and one count of attempted carjacking in Case No. NA054131 were not prior strikes because the conduct for which he was charged in this matter occurred prior to imposition of sentence in that case.   He points to the fact that the alleged assault on the prosecutor in count 1 and resisting the bailiff in count 2 occurred immediately after reading of the verdict and before the jury was polled.   The alleged criminal threat in count 3 occurred after the verdict was read and the jury polled, but before sentencing.

The issue presented for our determination is whether a defendant has been “convicted” of a prior offense, for purposes of the three strikes law, after a jury guilty verdict is read in open court but before the jury is polled or the defendant sentenced.   We answer this question in the affirmative.

 To resolve this issue, we must apply the customary rules of statutory construction in an effort to glean the meaning of the term “conviction” in this context.   We examine the statute giving the words their ordinary meaning in context (Quintano v. Mercury Casualty Co.(1995) 11 Cal.4th 1049, 1055, 48 Cal.Rptr.2d 1, 906 P.2d 1057), and consider the nature and purpose of the statute.  (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 378-379, 33 Cal.Rptr.2d 63, 878 P.2d 1275.)

Section 667, subdivision (c), makes the harsher three strikes sentencing provisions applicable when (1) a defendant “has been convicted of a felony,” and (2) “it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d)․” (Italics added;  see also § 667, subd. (e) [making the enhanced three-strike penalty applicable “where a defendant has a prior felony conviction”].)   Subdivision (b) of section 667 states that “[i]t is the intent of the Legislature in enacting subdivisions (b) to (i) [three strikes law], inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”

The term “conviction” has no fixed definition and has been interpreted by the courts of this state to have various meanings, depending upon the context in which the word is used.  (People v. Williams (1996) 49 Cal.App.4th 1632, 1637, 57 Cal.Rptr.2d 448.)  “ ‘Convicted’ ” sometimes refers to a verdict or guilty plea and other times it means a verdict or guilty plea and the judgment pronounced on the verdict or plea.   For purposes of imposing a sentencing enhancement, “ ‘conviction’ ” means only the ascertainment of guilt.   (People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033, 131 Cal.Rptr.2d 375.)   With respect to its applicability to the three strikes law, “[t]he Legislature certainly did not intend to benefit a repeat offender such as defendant based solely on the fortuity of the timing of sentencing.”  (People v. Rhoads (1990) 221 Cal.App.3d 56, 59, 270 Cal.Rptr. 266.)  “To the contrary, in context, Penal Code section 1170.12, subdivision (b)(1) evinces an intent to eschew technicalities in definition.   The focus we discern is rather on factual guilt․” (People v. Castello (1998) 65 Cal.App.4th 1242, 1253-1254, 77 Cal.Rptr.2d 314.)

We agree with the analysis in People v. Williams, supra, 49 Cal.App.4th 1632, 57 Cal.Rptr.2d 448.   There, the defendant pled guilty to three counts of residential burglary and one count of receiving stolen property, and the trial court found him guilty of a fourth count of residential burglary.   The information alleged a prior burglary strike, to which the defendant pled guilty, for a burglary that occurred before the current burglary.   However, judgment on the prior burglary was pronounced after the current burglary.   The defendant argued that the first burglary did not result in a conviction until pronouncement, which occurred after the current burglary and was therefore not a prior strike.   The Court of Appeal rejected this contention, stating, “Generally, however, where the existence of a prior conviction triggers increased punishments, courts interpret ‘conviction’ to mean the factual ascertainment of guilt by verdict or plea.”  (Id. at p. 1637, 57 Cal.Rptr.2d 448.)   The court concluded:  “Given the focus and purpose of section 667(b)-(i), we conclude that ‘prior felony convictions' in section 667, subdivision (c), falls within the general rule ․ [that] when guilt is established, either by plea or verdict, the defendant stands convicted and thereafter has a prior conviction.”  (Id. at p. 1638, 57 Cal.Rptr.2d 448.)   This appears to reflect the weight of authority on this point in this state.   (See People v. Castello, supra, 65 Cal.App.4th at p. 1254, 77 Cal.Rptr.2d 314 [“prior felony convictions” in § 667, subd. (c), applies to Florida guilty plea even though not formally adjudicated];  People v. Johnson (1989) 210 Cal.App.3d 316, 324, 258 Cal.Rptr. 347 [defendant has been “ ‘convicted’ ” within the meaning of § 667 even if he has not received pronouncement of judgment];  People v. Hurley (1957) 155 Cal.App.2d 350, 317 P.2d 1003 [conviction of possession of marijuana was sufficient to support a 10-year prison sentence on a subsequent conviction of furnishing a narcotic to a minor, though sentence for both were imposed at the same time and appeal from the prior was taken the next day];  People v. Clapp (1944) 67 Cal.App.2d 197, 200, 153 P.2d 758 [“Conviction does not mean the judgment based upon the verdict, but it is the verdict itself”].)

 Appellant adds a new wrinkle to this issue.   He urges that with respect to the first two counts, the conduct on which they were based occurred after the reading of the verdict to the jury and its acknowledgment that that was the verdict, but before the polling of the jury.   This fact does not alter our conclusion.   While a defendant has a right to have the jury polled, a verdict is generally complete if it has been read and received by the clerk, acknowledged by the jury and recorded.  (People v. Hendricks (1987) 43 Cal.3d 584, 597, 238 Cal.Rptr. 66, 737 P.2d 1350;  People v. Bento (1998) 65 Cal.App.4th 179, 188, 76 Cal.Rptr.2d 412.)   Here, although the jury had not been polled when appellant attacked the prosecutor and resisted the bailiff, the clerk had read the verdicts in open court, and the jury affirmatively responded to the clerk's inquiry as to whether the verdict was the jury's verdict.   This oral declaration was the return of the verdict.  (People v. Mestas (1967) 253 Cal.App.2d 780, 786, 61 Cal.Rptr. 731;  §§ 1163, 1164 [“if no disagreement is expressed the verdict is complete”].)   Furthermore, we find no equity in allowing the defendant to disrupt the normal court proceedings by a violent physical outburst, and then to use that interruption as a basis of avoiding the assessment of a prior strike offense.   Hence, we conclude that the trial court properly considered appellant's convictions in Case No. NA054131 prior felony strikes.3

II.-VII ***


The judgment is modified to award appellant 216 days of conduct credit and to reflect a total of 651 days of presentence credit.   The sentence on count 2 is reversed and the matter remanded for resentencing on that count consistent with the opinions expressed herein.   The judgment is otherwise affirmed.



1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 530, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero ).

3.   We fail to comprehend appellant's argument that “[a]ll three crimes of which appellant was convicted were ‘wobbler’ offenses which were eligible to be declared misdemeanors. (§ 217.1, subd. (a);  § 69;  § 422.)  ․ They were not yet prior felony convictions at the time the crimes charged in this case were committed.”   The three offenses to which he refers were charged in this case and were not prior offenses.

FOOTNOTE.   See footnote *, ante.

NOTT, J.** FN** Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

We concur:  BOREN, P.J., and ASHMANN-GERST, J.

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