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Name: People v. Gibson
Case #: B259909
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 08/26/2015

Trial court’s failure to retain exhibits used to prove defendant’s strike prior was error, but harmless given nature of conviction. At Gibson’s trial for attempted robbery with an alleged strike prior, the trial court admitted a certified prison packet (Pen. Code, § 969b) “by reference” only, and did not retain the exhibit in the court’s records. The prior was found true. On appeal, Gibson claimed the evidence was insufficient to prove the strike prior because the trial court failed to retain the exhibit. Held: Affirmed. Gibson was charged as having a 2011 assault (former Pen. Code, § 245, subd. (a)(1)) as a strike prior. In 2011, an assault violation was a strike if the appellant used a weapon (Pen. Code, § 1192.7, subd. (c)(31)) or personally inflicted great bodily injury (Pen. Code, § 1192.7, subd. (c)(8)), not if it was a conviction for assault by means of force likely to inflict great bodily injury. Because the trial court did not retain the section 969b package, nothing in the appellate record reflected the nature of the assault prior. A trial court is required to retain all exhibits until a case if final (Pen. Code, § 1417). Exhibits may be released early so long as no prejudice would result and a complete photographic record is made (Pen. Code, § 1417.2). The trial court erred in failing to retain the exhibit. The appellate court directed the trial court to obtain the section 969b packet from the prosecutor, certify its accuracy, and submit it to the reviewing court, which was done. The packet revealed that the assault prior was a strike, because the abstract characterized is as “ASSAULT WITH DEA” and Gibson received an additional year for weapon use (Pen. Code, § 12022, subd. (b)(1)). Therefore, Gibson suffered no prejudice from the trial court’s erroneous failure to retain the original section 969b packet in its file.