Filed 2/8/99

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

A jury convicted appellant Gabriel Ruiz of one count of second degree robbery and determined that he had personally used a knife in the commission of that offense. (Pen. Code, §§ 211, 212.5, subd. (c); 12022, subd. (b)(1).) Allegations that appellant had suffered a prior serious felony conviction were found true in a bifurcated court trial. (§§ 667, subd. (a)(1) [5-year enhancement]; 1170.12, subd. (a)-(d) ["Three Strikes" law].) Appellant was sentenced to 11 years in prison: the three-year middle term for the robbery conviction, doubled pursuant to the Three Strikes allegation, plus a five-year enhancement under section 667, subdivision (a)(1). We affirm.

FACTS

Rosa Garcia was walking to the grocery store with her mother when she was approached by appellant and another man. Appellant pointed a knife at Garcia's stomach while the other man grabbed her purse and ran away. Appellant, who had a limp, also fled. Garcia had about $200 in her purse.

Garcia and her mother followed appellant for about three-quarters of a mile. He circled around and returned to the area where the purse was taken. During their pursuit, Garcia saw appellant throw something into a trash can. She looked inside and recovered the knife used in the robbery.

The chase ended when appellant went inside a liquor store and Garcia called 911 from an outside pay phone. Appellant walked outside carrying a beer and was detained by Garcia's mother and a male bystander. While they were waiting for the police to arrive, appellant told the women that he would give them a photograph of the man who had taken the purse if they let him go. He also said that another person would make them sorry if he was not released.

Appellant testified at trial and denied any involvement in the robbery. He claimed that as he was leaving the liquor store, a man he did not know asked him for a cigarette and change. After appellant refused both requests, the man grabbed something from Garcia or her mother as the two of them walked by. Garcia's mother apparently believed that appellant knew the man. She told appellant that if he did not help them get the purse back, she would tell the police that appellant was the thief. Appellant waited for the police because he had nothing to hide.

Appellant acknowledged that the knife Garcia recovered from the trash can was his. He testified that he had placed it there because he was a convicted felon and was worried that he would get in trouble if the police found it in his possession.

DISCUSSION

I.

The allegations that appellant had suffered a prior conviction under the Three Strikes law and section 667, subdivision (a) were both based on his 1985 conviction for aggravated assault under section 245, subdivision (a)(1). Appellant contends that this conviction did not qualify as a serious or violent felony and should not have been used to increase his sentence. We disagree.

A.

Section 667, subdivision (a)(1) requires a five-year sentence enhancement when a defendant convicted of a "serious felony" offense listed in section 1192.7, subdivision (c) has been previously convicted of a serious felony. Section 1170.12 [the Three Strikes law] provides for an increased sentence when a defendant convicted of any felony has been previously convicted of either a serious felony under section 1192.7, subdivision (c) or a "violent felony" under section 667.5, subdivision (c). The lists of serious and violent felonies include both specific, enumerated crimes and descriptions of criminal conduct. (See People v. Cruz (1996) 13 Cal.4th 764, 772; People v. Guerrero (1988) 44 Cal.3d 343, 347-348.)

Aggravated assault is not an enumerated offense under either section 1192.7 or section 667.5. It can qualify as a serious or violent felony if the conduct underlying the conviction fits one of the descriptions of criminal conduct contained within those statutes. An assault will be treated as a serious felony when "the defendant personally inflict[ed] great bodily injury on any person, other than an accomplice, or . . .  personally use[d] a firearm" (§ 1192.7, subd. (c)(8)), or "personally used a dangerous or deadly weapon" (§ 1192.7, subd. (c)(23)). It will be treated as a violent felony when the defendant "inflict[ed] great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 or . . . use[d] a firearm which has been charged and proved as provided in Section 12022.5 or 12022.55." (§ 667.5, subd. (c)(8); see People v. Rodriguez (1998) 17 Cal.4th 253, 261.)

The trier of fact may review the entire record of conviction in the prior case to determine whether an assault involved conduct making it a serious or violent felony. (People v. Woodell (1998) 17 Cal.4th 448, 453; People v. Reed (1996) 13 Cal.4th 217, 222-223.) Prison records certified under section 969b are also admissible to prove that the defendant was convicted of a particular offense. (People v. Dunlap (1993) 18 Cal.App.4th 1468, 1476.)

B.

The parties agree that appellant's 1985 conviction for aggravated assault may not be used as a "strike" or as the basis for a five-year enhancement if it does not fit one of the conduct-related criteria of section 1192.7 or 667.5. The Attorney General claims that appellant's prior assault conviction qualifies for such treatment because it was accompanied by a great bodily injury enhancement under section 12022.7. Such an enhancement is sufficient to prove that a prior assault involved conduct which renders it a serious and violent felony. (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8); People v. Milosavljevic (1997) 56 Cal.App.4th 811, 815-818.)

Ordinarily it is an easy matter to show that a prior assault conviction was accompanied by a section 12022.7 enhancement. The difficulty here is that the abstract of judgment in the 1985 assault case is partially illegible. The abstract clearly indicates that appellant was convicted of violating section 245, subdivision (a)(1) [described in the abstract as "ASSLT GBI W/DLY WPN"], and that he received the two-year lower term for this offense. The abstract also shows that appellant received a three-year enhancement in connection with the assault conviction, for a total sentence of five years. A great bodily injury enhancement carries a three-year term, but there is no description of the enhancement actually imposed in the assault case and no legible reference to any code provision.

If this illegible copy of the abstract of judgment were the only available evidence of the prior conviction, the record would be insufficient to prove that appellant inflicted great bodily injury. (Compare, People v. Rodriguez, supra, 17 Cal.4th at p. 262.) However, the prosecution also introduced certified copies of appellant's prison records under section 969b. These records include a fingerprint card from appellant's 1985 prison commitment, which noted that the offense was "Asslt W/DW ([§]245, [subd.] (a)(1) . . . W/GBI ([§] 12022.7, PC)." (Italics added.)

The prison records from appellant's 1985 assault case were admissible to prove that he had been convicted of a particular offense, including any enhancements attached to that offense. (See People v. Dunlap, supra, 18 Cal.App.4th at p. 1474; People v. Matthews, supra, 229 Cal.App.3d at p. 937.) Combined with the legible portion of the abstract of judgment, which indicates that a three-year enhancement was imposed, the notation on the fingerprint card supports a finding that the 1985 assault was a serious and violent felony.

In reaching this conclusion, we are cognizant of People v. Williams (1996) 50 Cal.App.4th 1405, 1411. There the abstract of judgment from a prior case showed only that the defendant had been convicted of assault. A fingerprint card in the certified prison records referred to the offense as "ADW," and the trial court found this reference supported a finding that a deadly weapon had been used. The Court of Appeal reversed the trial court's finding that the assault qualified as a serious felony, concluding that a notation on a fingerprint card within a section 969b packet did not itself prove the nature of the prior offense. "[T]he fingerprint card is a record of the Department of Corrections, not the court in which the conviction occurred. We know of no reasonable basis to believe that the Department of Corrections employee who made the notation had any information concerning the underlying conviction other than that revealed in the abstract of judgment. The abstract does not refer to use of a deadly weapon." (Williams, supra, 50 Cal.App.4th at p. 1412, fn. omitted.)

The court in Williams correctly concluded that if the abstract of judgment did not contain adequate information to prove the nature of the underlying offense, the prison records based on that abstract would be equally deficient. Here we do not rely on the prison documents to provide independent information about appellant's prior crime, but to determine the content of the now-illegible portion of the abstract of judgment. The trial court could reasonably infer that the prison employee who created the fingerprint card correctly transcribed the offense and enhancement allegation from the court records. The evidence was thus sufficient to support the true finding.

[[II.

During closing, defense counsel argued that the victims' story did not make sense because it was unlikely appellant would have circled around and returned to the same area if he had been involved in a robbery. She also argued appellant would not have simply waited for the police at the liquor store if he was guilty.

The prosecutor suggested in rebuttal that appellant may have believed that Garcia and her mother were recent and possibly illegal immigrants, who would be unlikely to turn to the police for help: "[Appellant] probably thinks--and there may be some truth to the fact that they weren't born in this country, that they are not the best friends of the police and they're not the ones to know the police . . . ." Defense counsel unsuccessfully objected to these remarks on the ground that there was no evidence Garcia and her mother were illegal residents.

Counsel may not refer to facts not in evidence during closing argument, unless those facts are matters of common knowledge. (People v. Love (1961) 56 Cal.2d 720, 730, disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2; People v. Shoals (1992) 8 Cal.App.4th 475, 494.) Appellant argues the immigration status of the victims was neither in evidence nor a matter of common knowledge, and was thus an improper subject for the prosecutor's summation.

The thrust of the prosecutor's argument was not that the victims were illegal immigrants, but that their appearance, mannerisms and fluency in Spanish made it likely that appellant believed that they were. "Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial." (People v. Lucas (1995) 12 Cal.4th 415, 473.) "Whether [those] inferences . . . [are] reasonable . . . [is] for the jury to decide." (Id. at p. 474.)

Even if the prosecutor strayed beyond the boundaries of permissible argument, reversal is not required. Appellant's defense was that Garcia and her mother lied to the police about his involvement in the robbery because they mistakenly believed that he knew the man who had taken Garcia's purse. Appellant's motivation for remaining in the area after the robbery was tangential. We are satisfied that any impropriety in the prosecutor's argument was harmless beyond a reasonable doubt. (Contrast People v. Herring (1993) 20 Cal.App.4th 1066, 1077.)

III.

Appellant challenges the adequacy of CALJIC No. 2.90, which defines the standard of proof beyond a reasonable doubt. He argues that the instruction failed to define the phrase "abiding conviction," and thus allowed the jury to convict him on a lesser standard of proof.

The current version of CALJIC No. 2.90 is based on our Supreme Court's decision in People v. Freeman (1994) 8 Cal.4th 450, 501-505. We agree with the numerous appellate decisions which have determined that the instruction is constitutionally adequate. (See, e.g., People v. Carroll (1996) 47 Cal.App.4th 892, 896; People v. Barillas (1996) 49 Cal.App.4th 1012, 1022.)

IV.

CALJIC No. 2.06 was read to the jury over defense objection: "If you find that the defendant attempted to suppress evidence against himself in any manner, such as by concealing evidence, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration." Although this instruction draws attention to evidence suggesting consciousness of guilt, it also benefits the defense by clarifying that the suppression of evidence does not alone justify a conviction. (People v. Jackson (1996) 13 Cal.4th 1164, 1224; People v. Johnson (1992) 3 Cal.4th 1183, 1235.)

The trial court correctly determined that CALJIC No. 2.06 was supported by the evidence that appellant had disposed of his knife in the trash can. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1140 [evidence suggesting that knife was thrown from car by defendant supported CALJIC No. 2.06]; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1296-1297 [disposal of rifle that was used to commit murder supported CALJIC No. 2.06].) The jury was entitled to infer that appellant had attempted to suppress evidence of the robbery.

Appellant contends that his disposal of the knife lacked probative value because it had no rational connection to his guilt on the robbery charge. He points out that he offered a contrary explanation for placing the knife in the trash can--his fear that he would be arrested for being a felon in possession of a weapon.

The instruction was not precluded simply because appellant presented an alternative explanation for his acts. CALJIC No. 2.06 did not require the jury to find that appellant attempted to suppress evidence of a robbery; it merely explained that they could infer a consciousness of guilt if they believed he did. The instruction was proper. (See People v. Cooper (1991) 53 Cal.3d 771, 833.)

Appellant also argues that CALJIC No. 2.06 was misleading. He notes that the instruction applies to attempts to suppress evidence "in any manner," and claims the jury might have inferred he was guilty of the robbery even if they believed his explanation as to why he disposed of the knife. Such an interpretation would be contrary to common sense. If appellant discarded the knife solely to avoid an arrest for weapon possession, that fact would obviously tend to suggest he was innocent of the robbery. It is not reasonably likely the jury was misled by the instruction. (See People v. Dennis (1998) 17 Cal.4th 468, 515.)]]

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

COFFEE, J.

We concur:

GILBERT, Acting P.J.

YEGAN, J.

Michael Price, Judge

Superior Court County of Los Angeles County

______________________________

Gregory L. Rickard, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Jaime L. Fuster and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.