P. v. Laino 11/26/01 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D037111

Case Date: 02/21/2002

Preview:Filed 11/26/01

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Appellant, v. JAMES LEONARD LAINO, Defendant and Respondent.

D037111

(Super. Ct. No. SCD 153637)

APPEAL from a judgment of the Superior Court of San Diego County, Charles E. Jones, Judge. Reversed.

In a court trial, the judge ruled that a plea by James Leonard Laino entered under an Arizona statute providing for deferred entry of judgment and dismissal on completion of probation, which process Laino successfully completed, did not constitute a "strike" under California law. The People, relying on our decision in People v. Castello (1998) 65 Cal.App.4th 1242 (Castello), appeal, arguing the judge's determination was wrong as a matter of law. Laino argues first, the order below acquitted him and may not now be

challenged, and next, the Arizona diversion statute here in issue differs from the Florida conditional plea process considered in Castello, and thus the result below was correct. We hold that the order in question did not constitute an acquittal, and further, the initial entry of the plea of guilty in Arizona by Laino, notwithstanding later diversion and expungement, constitutes a strike under California law, and thus we reverse. FACTUAL BACKGROUND1 Laino and other family members live with his 95-year-old grandmother. After five failed attempts, between March 11 and April 9, 2000, Laino used his grandmother's ATM card without permission to access her Wells Fargo account 31 times, withdrawing over $5,300. Laino admitted taking the money, stating he had a gambling problem. PROCEDURAL BACKGROUND By an information filed September 10, 2000, the District Attorney of San Diego County accused Laino in one count of theft of personal property in excess of $400 from an elder, in violation of Penal Code2 section 368, subdivision (d), and in a second count of grand theft, in violation of section 487, subdivision (a). The information also alleged Laino had suffered a strike prior conviction3 in 1992 (aggravated assault/domestic violence), in Pima County, Arizona, in case number CR39574.

1 As Laino pleaded guilty and the underlying facts are not in dispute, we abbreviate our recitation thereof, taken from the transcript of the preliminary hearing. 2 3 Subsequent unattributed citations are to the Penal Code. See generally section 667, subdivisions (b) through (i). 2

Laino entered pleas of not guilty and denied the strike allegation on September 11, 2000. Trial was set for October 31, 2000, and on that day the case was assigned to Judge Charles E. Jones for trial. In the trial department, Laino pleaded guilty to the count 1 charge of theft from an elder, and stipulated the contents of the preliminary hearing would serve as the factual basis for his plea. The District Attorney dismissed the second count, and the parties agreed to a bench trial on the issue of the prior conviction. Trial was first set for December 12, 2000, but was continued to December 21. TRIAL PROCEEDINGS A. Evidence The first issue litigated was identity; that is, was it Laino who had pleaded guilty to the offense in Arizona? Based on fingerprint comparison, identity of personal history and appearance, and an admission made to a probation officer, the court found it true that Laino was the person who had entered the plea in Arizona. As to the nature of the offense, a certified copy of Arizona court records showed that the Pima County grand jury indicted Laino in October of 1992 for the felony offense of aggravated assault, domestic violence, in that Laino had assaulted his wife, Beverly Laino, with a handgun, in violation of Arizona statutes. A separate allegation was that the felony had involved use of a deadly weapon, a handgun.

3

On December 9, 1992, Laino entered a plea of guilty pursuant to Arizona Revised Statutes section 13-3601(H).4 The court accepted Laino's guilty plea, determined there was a factual basis for it, and deferred entry of judgment. On January 21, 1993, the court granted Laino probation for three years (the duration of probation was later reduced to two years). Laino successfully completed probation, and pursuant to Arizona Revised Statutes section 13-3601(H), proceedings were dismissed. B. Argument of Counsel Laino's counsel argued that the Arizona domestic violence diversion statute was most akin to California's drug diversion statutes (

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