Stanford Law School - Robert Crown Law Library

Filed 4/8/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Appellant,
S103324
v.
Ct.App. 4/1 D037111
JAMES LEONARD LAINO,
San Diego County
Defendant and Respondent. )
Super. Ct. No. SCD153637

In 1992, defendant pleaded guilty in Arizona to an aggravated assault with
a handgun against his wife. As a condition of probation, he successfully
completed a domestic violence “diversion” program in Arizona, which resulted in
a judgment of dismissal. He argues that the Arizona judgment of dismissal
effectively negated his earlier guilty plea under Arizona law, precluding its use as
a prior conviction in the current proceeding. He also argues that the full faith and
credit clause of the United States Constitution (U.S. Const., art. IV, § 1) precludes
our court from deciding, under California law, whether his Arizona guilty plea
constitutes a “strike” under California’s three strikes law.
We granted review to resolve the following issues: (1) whether California
must give full faith and credit to the Arizona judgment of dismissal and thus
decide, under Arizona law, whether defendant suffered a prior conviction for
purposes of California’s three strikes law; and (2) assuming California law applies,
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whether the Arizona guilty plea, followed by a dismissal upon the completion of
probation, constitutes a prior conviction under the three strikes law.
We hold that the full faith and credit clause does not bar our courts from
deciding this issue under California law. We further hold that under California
law, defendant suffered a prior conviction by reason of his guilty plea in Arizona.
I. PROCEEDINGS BELOW
A. The California Crime
On September 11, 2000, the People filed a two-count information charging
defendant with grand theft of personal property from an elder (Pen. Code, § 368,
subd. (d))1 and grand theft (§ 487, subd. (a)). The information also alleged that
defendant suffered a prior conviction in 1992 in Arizona for aggravated assault
with a handgun against his wife. Defendant pleaded not guilty and denied the
strike allegation. At the preliminary hearing, the People adduced evidence that
defendant lived with his 95-year-old grandmother and, without her permission,
obtained her Wells Fargo ATM card. Thereafter, between March 11, 2000 and
April 9, 2000, he accessed her bank account on 31 separate occasions and
withdrew a total of $5,319.53. On October 31, 2000, pursuant to a plea
agreement, defendant pleaded guilty to grand theft from an elder (§ 368, subd.
(d)); the grand theft count (§ 487, subd. (a)) was dismissed. The parties agreed to
put over sentencing and conduct a bench trial on the validity of the Arizona guilty
plea for three strikes purposes.
B. The Arizona Prior Conviction
On December 21, 2000, the bench trial commenced. The evidence showed
that, on October 6, 1992, defendant was charged in Arizona with aggravated

1
All statutory references are to the Penal Code unless otherwise indicated.
2

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assault, to wit, assaulting his wife with a handgun, a class 3 felony.2 On
December 9, 1992, defendant, pursuant to a written plea agreement, entered a plea
of guilty to the charge, and the court followed the procedures outlined in Arizona
Revised Statutes, section 13-3601, former subdivision (H).3 The court questioned
defendant concerning the factual basis of his plea and the minute order provided:
“IT IS THE JUDGMENT OF THE COURT that there is a factual basis for the
plea. The plea is accepted. Entry of judgment of guilt is deferred.” The court
further ordered that “sentencing [take place] on January 21, 1993.”
On January 21, 1993, the court prepared a document entitled “SENTENCE
OF PROBATION – DEFERRAL OF ENTRY OF JUDGMENT OF GUILT.”
The document memorialized that defendant waived his right to a court or jury trial
and “has entered a plea of guilty.” The document also noted that “[p]ursuant to
[Arizona Revised Statutes, former] [s]ection 13-3601[, subdivision] (H), without
entering a judgment of guilt and with the concurrence of the prosecutor and
consent of the defendant, the Court defers further proceedings and places the
defendant on probation” for aggravated assault with a handgun.4 The document

2
Felonies in Arizona are classified, for the purpose of sentencing, into six
categories: class 1, 2, 3, 4, 5 or 6 felonies. (Ariz. Rev. Stats., § 13-601.) The most
serious felonies are class 1 felonies, such as first and second degree murder.
(Ariz. Rev. Stats., § 13-1104, subd. B, § 13-1105, subd. (C).) Class 6 felonies
include possession of burglary tools (Ariz. Rev. Stats., § 13-1505, subd. (B)) and
theft of a motor vehicle (Ariz. Rev. Stats., § 13-1802, subd. (C)). Class 3 felonies
include residential burglary (Ariz. Rev. Stats., § 13-1507, subd. (B)) and
aggravated robbery (robbery in concert) (Ariz. Rev. Stats., § 13-1903, subd. (B)).
3
While the statute is not entitled as such, Arizona courts have sometimes
described the Arizona Revised Statutes section 13-3601 domestic violence
statutory scheme as a diversion scheme. (See, e.g., State v. Aguilar (Ariz.Ct.App.
1992) 831 P.2d 443, 448 [“[t]he domestic violence statutory scheme details
specific procedures to be followed from arrest to completion of diversion”].)
4
Arizona Revised Statutes section 13-3601, subdivision (H) (since amended
and redesignated as subdivision (M)) provided: “If the defendant is found guilty of
(Footnote continued on next page.)
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further provided: “As punishment for this/these crime(s) [¶] IT IS ORDERED
suspending imposition of sentence and placing the Defendant on Probation for a
period of three (3) YEARS, commencing this date, under the supervision of the
Adult Probation Department of this Court, in accordance with the formal
Conditions of Probation signed by the Court.” The document also provided: “IT
IS ORDERED that the defendant comply with all 16 standard conditions of
probation” and that he “participate in the Pima County Adult Diversion Domestic
Violence program and that he complete said program.”
Nearly three months later, on April 12, 1993, the court conducted a
probation violation hearing. Defendant was present and out of custody. The
hearing resulted in an amendment to defendant’s “Conditions of Probation
previously imposed,” adding the condition that “defendant have no contact with

(Footnote continued from previous page.)

an offense included in domestic violence and if probation is otherwise available
for that offense, the court may, without entering a judgment of guilt and with the
concurrence of the prosecutor and consent of the defendant, defer further
proceedings and place the defendant on probation as provided in this subsection.
The terms and conditions of probation shall include those necessary to provide for
the protection of the alleged victim and other specifically designated persons and
additional conditions and requirements which the court deems appropriate,
including imposition of a fine, incarceration of the defendant in a county jail,
payment of restitution and any counseling or diversionary programs available to
the defendant. On violation of a term or condition of probation, the court may
enter an adjudication of guilt and proceed as otherwise provided for revocation of
probation. On fulfillment of the terms and conditions of probation, the court shall
discharge the defendant and dismiss the proceedings against the defendant. This
subsection does not apply in any case in which the defendant has previously been
found guilty under this section, or in which charges under this section have
previously been dismissed in accordance with this subsection.” Arizona Revised
Statues section 13-3601 is silent on whether a plea of guilty constitutes a prior
conviction for purposes of its habitual criminal statutes. (See discussion post, at p.
9, fn. 8.)
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[his wife] or her residence except for purposes of exercising visitation granted in
[his] domestic relations case . . . .”
On May 24, 1993, defendant was released from custody upon posting
$2,000 bail. The record before us does not reveal why defendant was in custody,
but a minute entry for June 15, 1993 states that the “Court having found defendant
violated the terms and conditions of probation, [¶] It Is Ordered imposition of
sentence is suspended and defendant reinstated on probation on the same terms
and conditions as previously imposed; the Court is reinstating the defendant
because the probation officer indicates to the court that defendant has not been a
problem. It Is Ordered defendant stay away from his wife.” The minute entry
further noted: “Filed In Court: Notice of Rights of Review After Conviction.”
On March 2, 1994, defendant moved to terminate his probation. The
motion was not opposed by the probation department but was opposed by the
People. The court ordered that supervised probation be terminated and that the
term of probation be modified to two years from the date of sentencing.
On April 21, 1995, a document entitled “PETITION AND ORDER OF
DISCHARGE FROM PROBATION,” noted that, on January 21, 1993,
“defendant was placed on probation for Aggravated Assault With a Deadly
Weapon or Dangerous Instrument, to wit: a Handgun/Domestic Violence, a Class
3 Felony . . . .” The document further noted that “defendant has completed the
period of probation.” The court therefore ordered that “defendant is hereby
discharged from probation in this case” and “[a]ccording to [Arizona Revised
Statutes section 13-3601, former subdivision (H)], the proceedings against the
defendant are dismissed.”
C. Trial Court Ruling
The trial court below cited People v. Castello (1998) 65 Cal.App.4th 1242,
1253-1255 (Castello), for the proposition that California law applies in
determining whether the Arizona guilty plea was a strike under the three strikes
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law. The trial court ruled that a dismissal under the Arizona statute was more akin
to a dismissal under the drug offender deferred entry of judgment program
(§§ 1000.1 – 1000.8),5 than to an expungement under section 1203.4, subdivision
(a).6 It therefore found that the prior conviction allegation had not been proved
because a guilty plea under the drug deferred entry of judgment program cannot be
used as a prior conviction if the defendant has successfully completed the
program.
D. Court of Appeal Ruling
The Court of Appeal reversed,7 relying on its decision in Castello, supra,
65 Cal.App.4th 1242. In Castello, the same Court of Appeal held that a Florida

5
Section 1000.1, subdivision (a)(3) provides, in relevant part, that to enter
the drug offender deferred entry of judgment program, a defendant is required to
plead guilty and waive time for the pronouncement of judgment. Section 1000.1,
subdivision (d) provides that upon successful completion of a deferred entry of
judgment program, “[a] defendant’s plea of guilty pursuant to this chapter shall
not constitute a conviction for any purpose unless a judgment of guilty is entered
pursuant to Section 1000.3.”
6
Section 1203.4, subdivision (a) provides, in relevant part, that “[i]n any
case in which a defendant has fulfilled the conditions of probation for the entire
period of probation . . . or in any other case in which a court, in its discretion and
the interests of justice, determines that a defendant should be granted the relief
available under this section, the defendant shall . . . be permitted . . . to withdraw
his or her plea of guilty or plea of nolo contendre and enter a plea of not guilty; or,
if he or she has been convicted after a plea of not guilty . . . the court shall
thereupon dismiss the accusations or information against the defendant except as
noted below . . . . However, in any subsequent prosecution of the defendant . . . for
any other offense, the prior conviction may be pleaded and proved and shall have
the same effect as if probation had not been granted or the accusation or
information dismissed.”
7
Defendant argues that the People’s appeal of a judgment of “acquittal”
after the court trial on the prior conviction allegation is “barred under the
principles of procedural due process and collateral estoppel set out in People v.
Mitchell (2000) 81 Cal.App.4th 132.” Not so. We recently held to the contrary in
People v. Barragan (2003) 32 Cal.4th 236.
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guilty plea constituted a strike under California law, despite the fact that the
Florida court, after defendant’s guilty plea, withheld the adjudication of guilt until
after the defendant completed probation. Castello reasoned that for purposes of
the three strikes law, a conviction occurs at the time of the guilty plea. (Id. at pp.
1245, 1252-1253.) Castello noted that it was “a matter of academic interest only”
that Florida courts might not consider the defendant’s guilty plea a conviction in
Florida because California law controlled. (Id. at p. 1255.) Castello, however, did
not discuss the full faith and credit clause.
Under
Castello, the Court of Appeal held that defendant was convicted at
the time he entered his guilty plea to the Arizona offense. The Court of Appeal
added: “The fact of his completion of probation, and the subsequent dismissal of
the charges, does not affect this central, and dispositive, fact. . . . [F]or purposes of
the three strikes law, nothing in the subsequent history of the case in Arizona may
now be interposed to require a contrary conclusion.”
Relying
on
People v. Shear (1999) 71 Cal.App.4th 278, 284-289 (Shear),
the Court of Appeal addressed defendant’s full faith and credit argument. In
Shear, the defendant was convicted of being a felon in possession of a firearm
(§ 12021, subd. (a)), based on an Arizona prior felony conviction. Because
Arizona law had restored his right to possess a firearm upon completion of
probation, the defendant argued that the full faith and credit clause prohibited
California from using that conviction to support a charge of being a felon in
possession of a firearm. The Shear court disagreed. “Although state statutes
arguably fall within the literal terms of the [full faith and credit] clause, the United
States Supreme Court . . . has significantly limited the clause’s application to
statutes.” (Shear, supra, 71 Cal.App.4th at p. 284.)
The
Shear court relied extensively on Alaska Packers Assn. v. I.A.C. (1935)
294 U.S. 532, in which the high court stated: “It has often been recognized by this
Court that there are some limitations upon the extent to which a state will be
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required by the full faith and credit clause to enforce even the judgment of another
state, in contravention of its own statutes or policy. [Citations.] [¶] In the case of
statutes, the extra-state effect of which Congress has not prescribed, where the
policy of one state statute comes into conflict with that of another, the necessity of
some accommodation of the conflicting interests of the two states is still more
apparent. A rigid and literal enforcement of the full faith and credit clause,
without regard to the statute of the forum, would lead to the absurd result that,
wherever the conflict arises, the statutes of each state must be enforced in the
courts of the other, but cannot be in its own. [¶] . . . [¶] . . . [T]he conflict is to be
resolved, not by giving automatic effect to the full faith and credit clause,
compelling the courts of each state to subordinate its own statutes to those of the
other, but by appraising the governmental interests of each jurisdiction, and
turning the scale of decision according to their weight.” (294 U.S. at pp. 546-
547.)
Based on the foregoing authority, Shear held that the full faith and credit
clause did not require California to substitute the Arizona statute for its own
statute because California, as the forum state, has a significant state interest in
applying its own law: “There can be few more significant public policies of this
state than that of protecting the safety of its citizens.” (Shear, supra, 71
Cal.App.4th at p. 288.) Citing Shear, the Court of Appeal below held that
defendant’s full faith and credit argument was “without substance.”
II. DISCUSSION
Defendant does not dispute the rule articulated in Shear. He claims that he
is not asking California to substitute the Arizona statute for its own statute, but to
simply give full faith and credit to the Arizona court’s judgment of dismissal
which, under Arizona law, prevents such a guilty plea from being used to enhance
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a sentence in a subsequent Arizona criminal proceeding.8 As explained below, we
hold that the full faith and credit clause does not preclude a state from determining
under its own laws whether a guilty plea in another jurisdiction constitutes a prior
conviction for purposes of its habitual criminal statute.
A. Full Faith and Credit
Article IV, section 1 of the United States Constitution provides, in pertinent
part, that “Full Faith and Credit shall be given in each State to the Public Acts,
Records, and judicial Proceedings of every other State.” Title 28, section 1738 of
the United States Code implements the full faith and credit clause as follows:
“Such Acts, records and judicial proceedings or copies thereof so authenticated,
shall have the same full faith and credit in every court within the United States . . .

8
This claim is questionable. The Arizona Supreme Court has suggested that,
despite a defendant’s successful completion of probation under Arizona Revised
Statutes section 13-3601, such a guilty plea would constitute a prior conviction for
purposes of the Arizona habitual criminal statute. Specifically, in State v. Green
(1993) 174 Ariz. 586, 588 [852 P.2d 401, 403], the Arizona Supreme Court held
that a defendant may receive an enhanced sentence under the Arizona habitual
criminal statute where he or she pleads guilty, is placed on probation pursuant to
Arizona Revised Statutes section 13-3601, former subdivision (H), and commits a
new offense during the probationary period. The court stated: “Probation for a
felony granted pursuant to section 13-3601(H) is ‘probation for a conviction of a
felony offense’ within the enhancement provisions of [the habitual criminal
statute]” because “[t]he fact that no formal judgment had been entered did not
change the fact that admission of guilt showed [the defendant] to be a threat to
society.” (Green, supra, 852 P.2d at 403.) Thus, the court’s language in Green
suggests that a conviction dismissed under Arizona Revised Statutes, section 13-
3601, former subdivision (H) would nonetheless constitute a prior conviction
under Arizona’s habitual criminal statute because the “admission of guilt
show[ing] [the defendant] to be a threat to society” is not blotted out by the fact
that he committed the new crime during, or after, the probationary period. We
need not decide this question here, given our conclusion that the full faith and
credit clause does not preclude California courts from determining whether
defendant’s Arizona guilty plea constitutes a prior conviction under California
law.
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as they have by law or usage in the courts of such State . . . from which they are
taken.” The full faith and credit clause applies to matters between states (see, e.g.,
Sun Oil Co. v. Wortman (1988) 486 U.S. 717, 722-724) and to matters between a
state and the federal government. (See, e.g., Migra v. Warren City School Dist.
Bd. of Education (1984) 465 U.S. 75, 81.)
Defendant claims that the full faith and credit clause “is ‘exacting’ as to
judgements,” and therefore the clause “applies without qualification to the Arizona
judgement of dismissal.” Not so. Although it has been held in civil cases that “the
full faith and credit command ‘is exacting’ with respect to ‘[a] final judgment . . .
rendered by a court with adjudicatory authority over the subject matter and
persons governed by the judgment” (Franchise Tax Bd. of Cal. v. Hyatt (2003)
538 U.S. 448), we have stated that the full faith and credit clause “ ‘does not
require that sister States enforce a foreign penal judgment.’ ” (People v.
Bacigalupo (1991) 1 Cal.4th 103, 133, fn. 9 (Bacigalupo), citing Huntington v.
Attrill (1892) 146 U.S. 657 (Attrill), and Nelson v. George (1970) 399 U.S. 224
(Nelson).)
In
Attrill, the high court recognized that there are limitations upon the
extent to which a state may be required by the full faith and credit clause to
enforce the penal judgment of another state in contravention of its own statutes or
policy. There, a judgment creditor had previously secured a judgment against the
former director of a New York corporation for transferring stock to members of
his family in order to defraud creditors. The judgment creditor sought to enforce
this judgment in Maryland, but the Maryland Court of Appeals dismissed the
creditor’s bill in equity on the grounds that the underlying judgment was a penalty
under the New York statute and therefore not subject to the full faith and credit
clause. (Attrill, supra, 146 U.S. at pp. 663-664.)
In order to determine whether a “penalty” was subject to the full faith and
credit clause, the high court recalled the “fundamental maxim of international law,
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stated by Chief Justice Marshall in the fewest possible words: ‘The courts of no
country execute the penal laws of another.’ ” (Attrill, supra, 146 U.S. at p. 666.)
The high court then carefully distinguished the words “penal” and “penalty,”
noting that the full faith and credit clause does not obligate one state to enforce the
penal laws of another state: “Crimes and offences against the laws of any state can
only be defined, prosecuted and pardoned by the sovereign authority of that State;
and the authorities, legislative, executive or judicial, of other States take no action
with regard to them, except by way of extradition to surrender offenders to the
State whose laws they have violated, and whose peace they have broken.” (Id. at
p. 669; see also Williams v. North Carolina (1942) 317 U.S. 287, 295, fn. 6 [“It
has been repeatedly held that the full faith and credit clause does not require one
state to enforce the penal laws of another.”]
The high court affirmed this aspect of its Attrill holding in Nelson, supra,
399 U.S. 224, in which the petitioner was incarcerated in a California state prison
for robbery. During this custody period, the petitioner was transported to North
Carolina to stand trial on a robbery charge. He was convicted and thereafter
returned to California to serve the remainder of his California sentence. North
Carolina then placed a detainer on the petitioner. (Id. at pp. 225-226.) A federal
district court held that the petitioner was foreclosed from challenging the North
Carolina conviction while he was incarcerated in California. (Id. at p. 226.) On
appeal, the petitioner contended that the mere existence of the detainer amounted
to “a form of custody” because it affected his custodial classification and
probability of parole on the California sentence. (Id. at p. 227.)
In discussing the petitioner’s claim, the high court, following Attrill, stated
that “the Full Faith and Credit Clause does not require that sister States enforce a
foreign penal judgment” (Nelson, supra, 399 U.S. at p. 229), and observed that
“California is free to consider, what effect, if any, it will give to the North
Carolina detainer in terms of [the petitioner’s] present ‘custody.’ ” (Ibid.) In a
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footnote discussing California’s ultimate duty to extradite petitioner, the high
court underscored the inapplicability of the full faith and credit clause, stating:
“[T]he Full Faith and Credit Clause does not require California to enforce the
North Carolina penal judgment in any way.” (Id. at p. 229, fn. 6.)
And
in
Bacigalupo, we held that nothing in the full faith and credit clause
required us to adopt the New York rule that criminal charges dismissed as part of a
plea bargain constitute an acquittal. Instead, we held that we were free to more
narrowly define “acquittal” as “a judicial determination of the truth or falsity of
the charge,” as provided under California law. (Bacigalupo, supra, 1 Cal.4th at
pp. 133-134.) We therefore concluded that the facts underlying the New York
charges were admissible in a California death penalty case as evidence of an
aggravating circumstance under section 190.3, factor (b). (Bacigalupo, at p. 134.)
The holdings in Attrill, Williams, Nelson, and Bacigalupo are fatal to
defendant’s argument. If California need not give full faith and credit to penal
judgments of another state, then it is free to determine under its own laws whether
defendant’s Arizona plea constitutes a conviction for purposes of the three strikes
law, notwithstanding the subsequent Arizona judgment discharging defendant
from probation and dismissing the proceedings.
Indeed, there is general agreement that the full faith and credit clause, even
if it does apply to criminal judgments, does not prevent a state from (1) enhancing
a sentence based on an out-of-state conviction for which the defendant has been
pardoned; and (2) determining under its own laws whether a guilty plea in another
jurisdiction constitutes a prior conviction. In either instance, the treatment
accorded by a sister state to a judgment or other criminal proceeding does not
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preclude our state from using that judgment or proceeding to enhance a sentence
under our habitual criminal statutes.9
For example, in People v. Dutton (1937) 9 Cal.2d 505 (Dutton), we
squarely rejected the argument that the full faith and credit clause prevented the
use of an out-of-state prior conviction to enhance the defendant’s sentence after
the defendant had been pardoned for that offense. In Dutton, we first referenced
the companion case of People v. Biggs (1937) 9 Cal.2d 508, in which we rejected
the contention that an out-of-state prior conviction for which the defendant had
been pardoned by the state’s governor could not be considered under our habitual
criminal statutes. (Dutton, supra, 9 Cal.2d at p. 506.) As we explained in Biggs:
“To say, however, that the offender is ‘a new man’, and ‘as innocent as if he had
never committed the offense’, is to ignore the difference between the crime and
the criminal. A person adjudged guilty of an offense is a convicted criminal,
though pardoned; he may be deserving of punishment, though left unpunished;
and the law may regard him as more dangerous to society than one never found
guilty of crime, though it places no restraints upon him following his conviction.”
(Biggs, supra, 9 Cal.2d at p. 511.)
We concluded in Dutton: “Defendant in the instant case advances several
contentions not made in the [Biggs] case. He urges, first, that the trial court denied

9
In People v. Vasquez (2001) 25 Cal.4th 1225, we decided that an expunged
Texas conviction could be considered under California’s Sexually Violent
Predators Act. (Welf. & Inst. Code § 6600 et seq.) The parties in Vasquez
stipulated that the Texas proceeding “undisputedly ‘result[ed] in a conviction’
[citation] for an offense in another state containing all of the elements of a listed
California offense.” (Vasquez, supra, 25 Cal.4th at p. 1233.) We therefore did not
decide the issue advanced in the present case, which is whether the full faith and
credit clause compels us to resort to the foreign state’s definition of “conviction”
as a predicate to utilizing such “conviction” in our state. Indeed, full faith and
credit was not discussed at all.
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full faith and credit to the act of the governor of Wisconsin, in violation of article
IV, section 1, of the federal Constitution. No authority is cited to support the
remarkable assertion that California, in determining the appropriate punishment
for a person convicted of crime in this state, is denying effect to acts of the chief
executive of Wisconsin. He pardoned the defendant for the first offense; this state
punishes him for the second offense only, and full faith and credit is not
involved.” (Dutton, supra, 9 Cal.2d at p. 506.)
But defendant points out that we implicitly rejected the Dutton holding in
People v. Terry (1964) 61 Cal.2d 137, in which we held that under the full faith
and credit clause, a certified copy of the defendant’s conviction for armed robbery
in Oklahoma, for which the defendant had received a pardon, could not be
admitted into evidence in the penalty trial of a subsequent California death penalty
case: “Under the full faith and credit clause of the United States Constitution,
article IV, section 1, California must give an administrative decision of Oklahoma,
represented here by the pardon, the same effect in California as that decision
would have borne in Oklahoma. [Magnolia Petroleum Co. v. Hunt (1943) 320
U.S. 430, 435, 443.] Since Oklahoma courts treat the pardoned defendant as a
person not convicted of crime [Cloud v. State Election Board (1934) 169 Okla.
363, 365-366], California must defer to that definition of defendant’s status. [See
Gibson v. Westoby (1953) 115 Cal.App.2d 273 [California must give full faith and
credit to a sister state determination of status of incompetency]; Estate of Smith
(1948) 86 Cal.App.2d 456 [same for status of adopted child] . . . .” (Terry, supra,
61 Cal .2d at p. 148, original fns. incorporated in brackets.)
The tension between Terry and Dutton has not gone unnoticed. (See, e.g.,
66 Ops.Cal.Atty.Gen. 343, 348 (1983) [“application of the full faith and credit
clause to pardoned felons in California is confused by [Dutton and Terry] two
conflicting California Supreme Court cases”]; People v. Norton (1978) 80
Cal.App.3d Supp. 14, 19 [“there is a conflict [between Dutton and Terry as to]
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whether a pardoned offense may be used for other purposes”]; New Mexico v.
Edmonson (N.M.Ct.App. 1991) 818 P.2d 855, 859 [Terry rejected Dutton sub
silentio].) For the reasons stated below, we conclude that Dutton has the better
view.
Our holding in Dutton followed the reasoning set forth in Carlesi v. New
York (1914) 233 U.S. 51, in which the defendant challenged a New York habitual
criminal statute that took into consideration a prior federal conviction for which
the defendant had been pardoned by the President. The high court stated: “The
issue is a narrow one and involves not the determination of the operation and
effect of a pardon within the jurisdiction of the sovereignty granting it, but simply
requires it to be decided how far a pardon granted as to an offense committed
against the United States operates . . . [in] a subsequent state offense.” (Id. at p.
57.) Because “the act of the State in taking into consideration a prior offense
committed against the United States after pardon . . . was not in any degree a
punishment for the prior crime but was simply an exercise by the State of a local
power within its exclusive cognizance, there could be no violation of the
Constitution of the United States.” (Ibid.)
Dutton, Biggs, and Carlesi, when read together, express the view that
because a pardon does not “wipe out” the existence of the prior crime, that
conviction may be used to enhance a sentence under a habitual criminal statute
because the defendant is being punished only for the second offense and the full
faith and credit clause is not implicated. And, as it was in 1937 when Dutton was
decided, the weight of authority in the United States today is that the full faith and
credit clause does not prevent a conviction for which the defendant has been
pardoned from being used to enhance a sentence under another state’s habitual
criminal statute. (See generally Annot., Pardoned or Expunged Conviction as
“Prior Offense” Under State Statute or Regulation Enhancing Punishment for
Subsequent Conviction (2002) 97 A.L.R.5th 293, and cases cited.) As stated in
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Groseclose v. Plummer (9th Cir. 1939) 106 F.2d 311, 313: “Notwithstanding the .
. . pardons, the stubborn fact remains that the habit of crime was upon [defendant].
The executive clemency of one state could not, under any law of such state,
prevent a sister state from taking cognizance of plain facts, and from applying its
police laws to them.” People v. Terry, supra, 61 Cal.2d 137, is therefore
overruled to the extent it is inconsistent with the views expressed herein.
Finally, our conclusion that the treatment accorded by a sister state to a
judgment or other criminal proceeding does not preclude our state from using that
judgment or proceeding to enhance a sentence under our habitual criminal statutes
is consistent with the weight of authority from other jurisdictions.
In
New Mexico v. Edmonson, supra, 818 P.2d 855, for example, the issue
before the court was whether a Texas conviction that was “set aside” after
completion of probation, and which could not be considered under the Texas
habitual criminal statute, could nonetheless be considered under the New Mexico
habitual criminal statute. Citing Nelson and Attrill, the court stated “[i]t is not at
all clear that the Full Faith and Credit Clause applies to criminal matters.”
(Edmonson, supra, 818 P.2d at p. 860.) “Even assuming that it does, we believe
that it would rarely, if ever, compel one state to be governed by the law of a
second state regarding the punishment that can be imposed for a crime committed
within the first state’s boundaries.” (Ibid.) The court therefore held that the full
faith and credit clause did not apply: “[T]he deterrent and punitive purposes of
[habitual criminal] statutes argue strongly in favor of upholding their provisions
against any challenge under the Full Faith and Credit Clause.” (Id. at p. 861.) As
New Mexico treated a guilty plea as a “conviction” for purposes of its habitual
criminal statute, the court affirmed the use of the Texas conviction for purposes of
the New Mexico habitual criminal statute. (Ibid.)
In
McClish v. Arkansas (Ark. 1998) 962 S.W.2d 332, the state, pursuant to
its habitual offender statute, introduced evidence of the defendant’s Oklahoma
16

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conviction for rape during the sentencing phase of defendant’s robbery trial. The
Oklahoma court had accepted the defendant’s no contest plea to the rape charge,
deferred imposition of judgment and placed him on probation; upon his successful
completion of probation, the defendant was discharged without a court judgment
of guilt, the plea was expunged from the record, and the charge was dismissed
with prejudice to any further action. (Id. at p. 333.) The court applied Arkansas
law and held that the defendant had suffered a conviction when his no contest plea
was accepted. In so holding, it rejected the defendant’s argument that the
Oklahoma plea should not be admissible in an Arkansas court for sentence
enhancement purposes because an Oklahoma court would prohibit the use of that
plea for such purposes. The court stated, “the State of Arkansas is undeniably free
to independently legislate its own sentencing policy and procedures, which may be
contrary to the law of foreign states.” (Id. at p. 335.)
In
Bui v. Ashcroft (N.D.Tex., Jan. 31, 2003 No. 3:02-CV-1140-L) 2003
U.S. Dist. Lexis 1565, Bui was deported based on a Texas “deferred adjudication,”
under which a Texas court, after receiving a plea of guilty or no contest, defers
further proceedings without an adjudication of guilt and places the defendant on
probation; upon successful completion of probation, the proceedings are dismissed
and the defendant is discharged. Bui argued that the deferred adjudication was not
a conviction under Texas law and, under the statutory counterpart to the federal
constitution’s full faith and credit clause,10 the federal court must apply Texas law.
The court disagreed: “ ‘[A]ccording full faith and credit to a state judgment need
not control the collateral consequences that flow from the judgment.’ [Citation.] .
. . ‘[T]he consequences which a state chooses to attach to a conviction in its courts
for purposes of its own law are for it to say; but they cannot control the

10
Title 28 United States Code section 1738; see discussion page 10, ante.
17

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consequences to be given it in [another] proceeding . . . .’ [Citation.]” (Bui, supra,
2003 U.S. Dist. Lexis 1565, at pp. *5-*6.)
In
Poo v. Hood (S.D.N.Y., Feb. 12, 1992 No. 89 CIV. 7874 (MBM)) 1992
U.S. Dist. Lexis 1535 (Hood), petitioner’s Florida guilty plea resulted in a
disposition called “adjudication withheld,” wherein the Florida court declines to
convict the defendant if the defendant successfully completes probation. The
petitioner argued that New York’s considering of this conviction under its habitual
offender statute violated full faith and credit. The court disagreed: “New York’s
statutory choice to treat a finding of guilt as the predicate to imposing a heavier
penalty when a defendant commits another crime cannot violate the full faith and
credit clause, regardless of how Florida chooses to treat the same event” (id. at pp.
*15-*16) because the “full faith and credit clause does not lodge in the state of
original conviction the power to control the effect of that conviction on later acts
committed outside that state.” (Id. at p. *17.)
At
bottom,
Edmonson, McClish, Bui and Hood stand for the proposition
that, given a state’s legitimate interest in enforcing its own sentencing procedures
and policies for repeat offenders who commit crimes within the state, the full faith
and credit clause does not bar a state from determining, under its own laws,
whether an out-of-state guilty plea constitutes a “conviction” for purposes of a
habitual criminal statute.11 We agree. As stated in Hood, “the profile of the

11
The full faith and credit clause has been unsuccessfully interposed in a
variety of criminal contexts. See, e.g., State v. Langlands (2003) 276 Ga. 721 (full
faith and credit does not bar Georgia from treating out-of-state misdemeanor
convictions as felonies in Georgia where such convictions meet the specified
statutory requirements); People v. Alba (N.Y.Sup. Ct. 2001) 730 N.Y.S.2d 191
(New York not required to give full faith and credit to another jurisdiction’s
directive that sentences run concurrently with one another); Barker v. Ohio (Ohio
1980) 402 N.E.2d 550 (full faith and credit does not bar Ohio from expunging a
West Virginia conviction for new Ohio resident even though West Virginia does
(Footnote continued on next page.)
18

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shadow that conviction casts on later events is the business of the state where
those later events occur.” (Hood, supra, 1992 U.S. Dist. Lexis 1535, p. *18.) We
now turn to the question of whether defendant’s Arizona conviction constitutes a
“prior conviction” under the three strikes law.
B. Defendant’s Conviction is a Strike Under California Law
The three strikes law imposes enhanced punishment, “Notwithstanding any
other law, if a defendant has been convicted of a felony and it has been pled and
proved that the defendant has one or more prior felony convictions . . . . ” (§§
667, subd. (c), 1170.12, subd. (a).) A prior conviction for purposes of the three
strikes law includes “A conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state prison. A
prior conviction of a particular felony shall include a conviction in another
jurisdiction for an offense that 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.” (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Assault with a firearm,
defendant’s crime, is included as a “prior conviction” under section 667.5,
subdivision (c)(8) and section 1192.7, subdivision (c)(8).
The three strikes law continues: “The determination of whether a prior
conviction is a prior felony conviction for purposes of [this section] shall be made
upon the date of that prior conviction and is not affected by the sentence imposed
unless the sentence automatically, upon the initial sentencing, converts the felony
into a misdemeanor. None of the following dispositions shall affect the

(Footnote continued from previous page.)

not authorize an expungement for such conviction); Oregon v. Calvin (Or. 1966)
481 P.2d 821 (full faith and credit does not bar Oregon from considering
California forgery under its habitual criminal statute even though forgery is not an
included felony under California’s habitual criminal statute).
19

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determination that a prior conviction is a prior felony . . . . [¶] (A) The
suspension of imposition of judgment or sentence. [¶] (B) The stay of execution
of sentence.” (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).)
The three strikes law clearly provides that a prior conviction occurs upon
“the date of that prior conviction and is not affected by the sentence imposed.”
(§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) The statutory language thus
comports with the general California rule that “ ‘A plea of guilty constitutes a
conviction.’ [Citation.]” (People v. Banks (1959) 53 Cal.2d 370, 390-391.)
“Indeed, it is settled that for purposes of a prior conviction statute, a conviction
occurs at the time of entry of the guilty plea.” (Castello, supra, 65 Cal.App.4th at
p. 1253.) As we stated in People v. Balderas (1985) 41 Cal.3d 144, 203, “For
purposes of a ‘prior conviction’ statute, defendant suffers such a conviction when
he pleads guilty.” We affirmed this view with specific reference to the three
strikes law in People v. Rosbury (1997) 15 Cal.4th 206, 210, in which we cited
with approval People v. Williams (1996) 49 Cal.App.4th 1632, 1636 for its
holding “that under the three strikes law ‘when guilt is established, either by plea
or verdict, the defendant stands convicted and thereafter has a prior conviction.’ ”
(Rosbury, at p. 210.)
But defendant claims he was placed on “diversion” pursuant to section 13-
3601, former subdivision (H) of the Arizona Revised Statutes, the “Arizona
diversion statute,” because he was statutorily obligated to complete a “diversion”
program for domestic violence offenders. Upon completion of such program, his
case was dismissed. Defendant therefore argues that he was not “convicted” under
California law because the Arizona proceedings under section 13-3601, former
subdivision (H) of the Arizona Revised Statutes were akin to proceedings under
California’s deferred entry of judgment program for drug offenders, under which a
guilty plea, upon the successful completion of the program, “does not constitute a
conviction for any purpose.” (§ 1000.1, subd. (d).)
20

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Defendant is incorrect. California has limited this statutory benefit to
certain nonviolent drug offenders and, as will be shown below, has specifically
excluded such a benefit where the offender has committed a crime involving
domestic violence.
In 1972, California enacted its drug diversion program. (§§ 1000.1 –
1000.4, added by Stats. 1972, ch. 1255, § 17, p. 2469.) The statutory scheme
provided that defendants eligible under this chapter could waive their right to a
speedy trial and, by entering an approved drug diversion program, be diverted
from criminal proceedings for no less than six months nor more than two years.
(§ 1000.2.) No guilty plea was required. If the divertee performed
unsatisfactorily, criminal proceedings were resumed. (§ 1000.3.) If the divertee
successfully completed the program, criminal charges under this chapter were
dismissed and the arrest upon which the diversion was based was deemed never to
have occurred. (§§ 1000.3, 1000.5.)
Effective January 1, 1997, the Legislature replaced California’s drug
diversion program with the current deferred entry of judgment program. (Stats.
1996, ch. 1132, § 2.) Under the new program, an eligible defendant can enter a
plea of guilty, participate in a drug rehabilitation program and, upon completion of
the program, have the charges dismissed. (§§ 1000 – 1000.2.) “A defendant’s
plea of guilty pursuant to this chapter shall not constitute a conviction for any
purpose unless a judgment of guilt is entered pursuant to Section 1000.3.”
(§ 1000.1, subd. (d).)
Defendant places great reliance on this last provision, that “[a] defendant’s
plea of guilty pursuant to this chapter shall not constitute a conviction for any
purpose . . . .” (§ 1000.1, subd. (d).) But this provision applies, by its terms, only
to guilty pleas entered “pursuant to this chapter.” There is nothing to indicate that
the Legislature intended to change the general rule, discussed above, that a guilty
plea constitutes a conviction. Instead, the Legislature simply decided to encourage
21

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individuals with a drug problem to enter a drug program by offering them the
incentive that, upon completion of the drug program, their conviction would
disappear.
Indeed, the fact that the Legislature intended to limit this statutory benefit
to carefully chosen nonviolent drug offenders is aptly illustrated by the fact that, in
1995, the Legislature repealed the domestic violence misdemeanor diversion
program,12 specifically because of the serious nature of domestic violence. The
Legislature declared: “Domestic violence is a serious and widespread crime.
Between two and four million American women are beaten annually by their
husbands or boyfriends; 1,400 women are killed each year by current or former
husbands or boyfriends; domestic violence is the second leading cause of injury to
women aged 15 to 44 years. [¶] . . . Until recently, domestic violence has not
received sufficient priority in public policy concerning crime and public safety.
According to an analysis of state statistics, about two-thirds of those arrested for
felony spousal abuse were prosecuted, with 80 percent of those cases treated as
misdemeanors. [¶] . . . Domestic violence has long-term effects that are disastrous
for social policy and threatens the stability of the family and negatively impacts all
family members, especially children, who learn that violence is an acceptable way
to cope with stress or problems. . . . [¶] . . . Diversion programs for perpetrators of
domestic violence, while worthwhile in intention and sometimes effective, are
inadequate to address domestic violence as a serious crime [¶] . . . Therefore, the

12
In 1979, California enacted a diversion program for domestic violence
misdemeanors (§§ 1000.6 – 1000.11, added by Stats. 1979, ch. 913, § 1, p. 3141),
which diverted the participant from prosecution for no less than six months nor
longer than two years. No admission of guilt was required and, upon successful
completion of the domestic violence diversion program, the criminal charges were
dismissed, and the arrest upon which the diversion was based was deemed never
to have occurred. (Former §§ 1000.8 – 1000.10, added by Stats. 1979, ch. 913,
§ 1, pp. 3142-3143.)
22

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Legislature finds it important to treat domestic violence as a serious crime.”
(Stats. 1995, ch. 641, § 1, subds. (a) – (e), p. 5069.) Our state has never had a
diversion program for domestic violence felonies that involve violence, such as
aggravated assault with a handgun against a spouse, the crime to which defendant
entered a plea of guilty in Arizona. Defendant’s analogy to our deferred entry of
judgment program for drug offenders is inapt.
All that remains, therefore, is to determine whether defendant’s Arizona
guilty plea meets the requirements of a guilty plea under the three strikes law. It
does. Defendant in the prior case waived his right to a court or jury trial and
entered a plea of guilty to aggravated assault pursuant to a written plea agreement.
The Arizona court questioned defendant, found there was a factual basis for his
plea, and accepted the plea. Defendant was placed on probation and imposition of
sentence was suspended. Our three strikes law specifically provides that the
suspension of imposition of sentence does not affect the determination that such
prior conviction constitutes a strike. (§§ 667, subd. (d)(1)(A), 1170.12, subd.
(b)(1)(A).) Defendant was ordered to “comply with all 16 standard conditions of
probation.” The court subsequently found that defendant violated the conditions
of his probation and filed a “Notice of Rights of Review After Conviction,”
advising defendant of his right to file a petition for postconviction relief.13
Defendant’s plea of guilty to aggravated assault with a handgun constitutes
a prior conviction under the three strikes law. (See §§ 667, subd. (d)(1), 1170.12,
subd. (b)(2).) As stated by the court in People v. Williams, supra, 49 Cal.App.4th

13
“[U]nder [the Arizona Rules of Criminal Procedure, rules] 17.1(e) and
27.8(e), a defendant in a noncapital case who pleads guilty or admits a parole
violation waives the right to a direct appeal. In accord with art[icle] 2, [section]
24, however, those rules specifically allow the defendant to ‘seek review . . . by
filing a petition for post-conviction relief pursuant to Rule 32.” (State v. Sheldon
(Ariz. 1995) 889 P.2d 614, 616.)
23

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at page 1638: “The focus of the three strikes law is conduct: did the defendant
commit a felony after having previously committed one or more serious or violent
felonies? When a defendant pleads guilty to or is convicted of a felony, the law is
satisfied factually that he or she committed it. When the deterrent effect of the law
fails and the defendant subsequently commits another felony, he or she becomes a
repeat offender and deserves harsher punishment, regardless of whether judgment
and sentence have been pronounced on the initial offense. [¶] 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 illustrated in [People v.
Rhoads (1990) 221 Cal.App.3d 56]: when guilt is established, either by plea or
verdict, the defendant stands convicted and thereafter has a prior conviction.” As
stated by the Court of Appeal, defendant’s guilty plea constituted a prior
conviction “for purposes of the three strikes law, [and] nothing in the subsequent
history of the case in Arizona may now be interposed to require a contrary
conclusion.”
III. DISPOSITION
No matter what lenience Arizona may or may not bestow upon its recidivist
criminals who have committed domestic violence felonies, once we are satisfied
that a defendant’s factual guilt was established in the foreign state, and once we
are satisfied that such conviction constitutes a strike under our three strikes law,
that prior crime will count here. The judgment of the Court of Appeal is affirmed.

MORENO, J.

WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
24

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Laino
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 11/26/01 - 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S103324
Date Filed: April 8, 2004
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Charles E. Jones

__________________________________________________________________________________

Attorneys for Appellant:

Paul J. Pfingst and Bonnie M. Dumanis, District Attorneys, Charles E. Nickel, Thomas F. McArdle,
Anthony Lovett and Josephine A. Kiernan, Deputy District Attorneys, for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Steven J. Carroll, Public Defender, Michael Begovich and Matthew C. Braner, Deputy Public Defenders,
for Defendant and Respondent.

25

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Josephine A. Kiernan
Deputy District Attorney
330 West Broadway, Suite 920
San Diego, CA 92101
(619) 531-3585

Matthew C. Braner
Deputy Public Defender
233 “A” Street, 14th Floor
San Diego, CA 92101
(619) 338-4705

26

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Opinion Information

Date:	Docket Number:
Thu, 04/08/2004	S103324

Disposition
Apr 8 2004	Opinion: Affirmed

Dockets
Jan 2 2002	Petition for review filed   by (Public Defender) counsel for Respondent (James Leonard Laino)
Jan 4 2002	Record requested
Jan 4 2002	Received Court of Appeal record   1 doghouse
Feb 20 2002	Petition for Review Granted (criminal case)   Votes: George, CJ., Kennard, Chin, Brown and Moreno, JJ.
Mar 15 2002	Request for extension of time filed   In San Diego by counsel for Respondent asking until April 12, 2002 to file Respondent's Opening Brief on the Merits.
Mar 22 2002	Extension of time granted   To April 12, 2002 to file Respondent's Opening Brief on the Merits.
Apr 12 2002	Opening brief on the merits filed   by counsel for respondent (James Leonard Laino). (Filed in San Diego.)
May 3 2002	Request for extension of time filed   Appellant asking until June 13, 2002 to file appellant's answer brief on the merits.
May 9 2002	Extension of time granted   To June 13, 2002 to file appellant's answer brief on the merits.
Jun 13 2002	Answer brief on the merits filed   In San Diego by counsel for appellant {The people}.
Jul 3 2002	Reply brief filed (case fully briefed)   in San Diego by counsel for respondent James Leonard Laino.
Jan 14 2004	Case ordered on calendar   Monday, February 9, 2004 @ 1:30pm (Sacramento)
Jan 30 2004	Received letter from:   Counsel for appellant {The people} re: additional authorities.
Feb 9 2004	Cause argued and submitted
Apr 8 2004	Opinion filed: Judgment affirmed in full   Majority Opinion By Moreno, J., ----- Joined by George, CJ., Kennard, Baxter, Werdegar, Chin and Brown, JJ.
May 28 2004	Remittitur issued (criminal case)
Jun 8 2004	Received:   Receipt for Remittitur from 4 DCA Div. 1

Briefs
Apr 12 2002	Opening brief on the merits filed
Jun 13 2002	Answer brief on the merits filed
Jul 3 2002	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website