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People v. Cortez5/23/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Abelardo Ramirez Cortez was found guilty at a court trial of robbery and three counts of attempted robbery with the personal use of a firearm, and of being a felon in possession of a firearm. With one strike prior of drawing and exhibiting a weapon at a peace officer, defendant received a sentence of 14 years in state prison. On appeal, he challenges only the sufficiency of the evidence that the prior conviction qualified as a strike prior.
FACTS AND DISCUSSION
Between 4 and 4:30 a.m. on February 25, 2001, defendant used a gun in trying to rob four men who were sitting in a parked car in the parking lot of an apartment complex on Noise Drive in Salinas. One victim handed over his wallet then the intended victims wrestled, kicked and beat defendant until he could not get up. During the struggle for the gun, two shots were fired and one shot hit one of the victims who required surgery and remained in the hospital for a week and a half. Defendant had multiple facial and head contusions, a hematoma over his left eye, and bruises over his chest and abdomen. His blood alcohol level was 0.179.
The court trial was bifurcated and the prior conviction was proven by a certified copy of the court docket from Monterey County Superior Court case No. MM991082A. It shows that defendant pled nolo contendere to brandishing a weapon at a peace officer (Pen. Code, § 417, subd. (c)) and possessing a controlled substance for sale while personally armed with a firearm. (Health & Saf. Code, § 11378; § 12022, subd. (c).) Defendant was placed on probation with numerous terms and conditions.
Defendant now claims the evidence is insufficient to establish that the prior conviction was a strike prior because the docket did not show that defendant personally used a firearm as required by section 1192.7, subdivision (c)(8), or personally used a dangerous or deadly weapon as required by section 1192.7, subdivision (c)(23).
The People assert that the trial court took judicial notice of the entire case file of case No. MM991082A and that because defendant failed to include the case file in the record on appeal; this court should presume that the file contained sufficient evidence to support the trial court's true finding that the prior was a strike prior. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448 (Vo).) Defendant reads the same section of the reporter's transcript as meaning that the court considered only exhibit 19, the certified copy of the docket.
The transcript states: "[THE PROSECUTOR]: Your Honor, I have marked as People's Exhibit 19 a copy of the docket for case number SM991082A. It is certified. At this point, I would ask the Court to take judicial notice of that particular case. I believe it was brought into court this morning. [ ] THE COURT: I'm sorry. What docket number? [ ] [THE PROSECUTOR]: SM991082A. [ ] THE COURT: Yes. I have it here. [ ] [THE PROSECUTOR]: For purposes of proving the strike. I have no further witnesses at this time. [ ] THE COURT: Does that mean you rest? [ ] [THE PROSECUTOR]: I would move People's Exhibit 1 through 19 into evidence and rest. [ ] . . . [ ] THE COURT: All right. Do you want to get into the exhibits now or do you have any objections? [ ] [DEFENSE COUNSEL]: I have no objections." The defense presented its case, the matter wa
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