52 Cal.App.4th 1513H, People v. Monreal, H014775

• Decision Date: 04 February 1997
• Docket Number: No. H014775,H014775
• Citation: 60 Cal.Rptr.2d 737,52 Cal.App.4th 670
• Court: California Court of Appeals Court of Appeals
• Parties: H, 52 Cal.App.4th 670, 97 Cal. Daily Op. Serv. 852, 97 Daily Journal D.A.R. 1219 The PEOPLE, Plaintiff and Respondent, v. Gustavo Marc MONREAL, Defendant and Appellant.

Page 737

60 Cal.Rptr.2d 737

52 Cal.App.4th 1513H, 52 Cal.App.4th 670,

97 Cal. Daily Op. Serv. 852,

97 Daily Journal D.A.R. 1219

The PEOPLE, Plaintiff and Respondent, v. Gustavo Marc MONREAL, Defendant and Appellant.

No. H014775.

Court of Appeal, Sixth District, California.

Feb. 4, 1997.

As Modified on Denial of Rehearing Feb. 27, 1997.

Review Denied May 14, 1997.

James R. Stupar, Monterey, for Defendant and Appellant in association with the Sixth District Appellate Project.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, and Gregory A. Ott, Deputy Attorney General, for Plaintiff and Respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

Defendant Gustavo Marc Monreal was convicted by guilty plea of two counts of second-degree burglary of the vehicles of Sandra Del Toro and Alok Jhanji (counts 1 and 2; §§ 459-460). ¹ Pursuant to the plea bargain, defendant acknowledged that the court could also consider for purposes of sentencing and restitution a charge of second-degree burglary of the vehicle of Kenneth Walters (count 3; §§ 459-460) and a charge of receiving a stolen Panasonic car stereo (count 6; § 496). At sentencing the court dismissed counts 3 and 6 and the remaining three counts, including petty theft from the vehicle of Robert Wicke (count 4; §§ 484, 488) and two other charges of receiving stolen car stereo equipment (counts 5 and 7; § 496).

Defendant was also charged with the prior strike felony of assault with personal use of a deadly weapon. (§ 245, subd. (a)(1).) The parties submitted for court trial whether this prior felony qualified as serious. Defense counsel agreed to submit the issue on the abstract of judgment and the probation report, which he conceded were admissible. The parties agreed that if the trial court did not find a strike, the bargain would be renegotiated. ² The trial court found that defendant had a prior strike.

Pursuant to the plea bargain, the trial court imposed a prison sentence of 32 months, double the lower term on count 1, with the same concurrent term on count 2. The term was doubled under the Three Strikes statute. (§ 1170.12, subd. (c)(1).) The court ordered defendant to pay $105 restitution to Walters (count 3).

On appeal defendant contends that his trial counsel was ineffective because he did not object to admission of the probation report to prove that defendant's prior felony conviction qualified as a strike. For the reasons stated below, we will affirm the judgment.

The Current Offenses

The following evidence was presented at the preliminary examination. On July 1, 1995, around 3:15 a.m., Sunnyvale public safety officers responded to a call and apprehended defendant after he was seen leaving an apartment complex on a bicycle with a duffel bag strapped to his back. The public safety officers found stereo equipment and accessories in the duffel bag taken from four vehicles in the apartment complex. Windows in three of the vehicles had been broken. The fourth vehicle had an open top.

Evidence of the Prior Conviction

The parties agree that the abstract of judgment from defendant's prior conviction shows that defendant was convicted after jury trial on December 14, 1993, of assault with a knife. (§ 245, subd. (a)(1).) It does not show that defendant personally used the knife.

Section 1170.12, subdivision (b), defines a prior conviction as "(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." A violation of section 245, subdivision (a), is not listed among either the violent felonies in section 667.5, subdivision (c), or the serious felonies in section 1192.7, subdivision (c). If defendant's prior conviction qualifies as a serious felony, it is under section 1192.7, subdivision (c)(23), which states: "any felony in which the defendant personally used a dangerous or deadly weapon." (People v. Equarte (1986) 42 Cal.3d 456, 465, 229 Cal.Rptr. 116, 722 P.2d 890; People v. Williams (1990) 222 Cal.App.3d 911, 914-915, 272 Cal.Rptr. 212.)

Here the probation report from the prior proceeding establishes that defendant personally used a knife and committed a serious felony. Defendant told the probation officer that he took the knife from Alejandro Urzua after they began fighting and stabbed him once.

1. Certificate of Probable Cause

The Attorney General contends that a certificate of probable cause under section 1237.5 is a prerequisite for this appeal.

We disagree. A certificate would be required if defendant were attacking the plea bargain in this case. (Compare People v. Masten (1982) 137 Cal.App.3d 579, 585, 187 Cal.Rptr. 515, disapproved on another ground by People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165; cf. People v. Cotton (1991) 230 Cal.App.3d 1072, 1079, 284 Cal.Rptr. 757.) But he is not attacking the plea bargain. Instead, defendant is challenging his attorney's effectiveness in the post-plea trial on the nature of defendant's prior felony conviction. (People v. Garner (1985) 165 Cal.App.3d 145, 150, 211 Cal.Rptr. 267, disapproved on another ground by People v. Thomas (1986) 41 Cal.3d 837, 844, fn. 7, 226 Cal.Rptr. 107, 718 P.2d 94; cf. People v. Casarez (1981) 124 Cal.App.3d 641, 644, 177 Cal.Rptr. 451; Cal. Rules of Court, rule 31(d)(1).) The plea bargain did not control the outcome of that proceeding.

2. Defendant's Statement to the Probation Officer

On appeal, defendant contends that his trial counsel should have objected to the probation report rather than stipulating to its admissibility. Defendant contends that the probation report is inadmissible hearsay and also is not part of the "record of conviction" to which trial courts may look to determine the nature of a prior conviction. (People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)

In People v. Reed (1996) 13 Cal.4th 217, 52 Cal.Rptr.2d 106, 914 P.2d 184, the California Supreme Court suggested two possible meanings for "record of conviction," either "the record on appeal ... or more narrowly, ... only ... those record documents reliably reflecting the facts of the offense for which the defendant was convicted...." (Id. at p. 223, 52 Cal.Rptr.2d 106, 914 P.2d 184.) Reed determined that a preliminary hearing transcript qualified under either definition as part of the record of conviction. The reliability of the transcript was ensured by the procedural protections afforded a defendant by a preliminary examination. "Those protections include the right to confront and cross-examine witnesses and the requirement those witnesses testify under oath." (Ibid.)

Reed declined to resolve "[w]hether the probation officer's report also falls within the more narrow definition...." (13 Cal.4th at p. 230, 52 Cal.Rptr.2d 106, 914 P.2d 184.) Reed did not question whether a probation report falls within the broader definition of "record of conviction." That it does appears indisputable. Probation reports are mandatory when a felony convict is eligible for probation (§ 1203, subd. (b)(1)) and discretionary in other cases (§§ 1203, subd. (g); Cal. Rules of Court, rule 411(a), (b)). Whenever a probation report is prepared, it must be filed in the records of the trial court. (§§ 1203, subd. (b)(2)(D); 1203.10; 1203d.) It is part of the record on appeal. (Cal. Rules of Court, rule 33(a)(1)(l).) As in Reed, we will consider whether the probation report is admissible hearsay before reaching the question whether it qualifies under the narrower definition of "record of conviction."

Reed concluded that a probation report excerpt was inadmissible multiple hearsay as follows. (People v. Reed, supra, 13 Cal.4th at p. 230, 52 Cal.Rptr.2d 106, 914 P.2d 184.) Reed explained: "Aside from the out-of-court nature of the probation officer's statement itself, the report excerpt includes the officer's assertions that certain events 'reportedly' occurred during the prior assault. Narration of 'reported' events is by definition based on the statements of others. Indeed, unless the probation officer was a percipient witness to the assault, all of the narration contained in the excerpt must have been drawn from other people's previous statements.

"The report fragment does not identify the declarant or declarants from whose statements the probation officer drew his factual summary. There is no evidence the excerpt was based on defendant's own admissions to the officer, so as to fall within the hearsay exception for party admissions. (Evid.Code, § 1220; see People v. Garcia (1989) 216 Cal.App.3d 233, 237, 264 Cal.Rptr. 662 [defendant's admissions contained in probation report]; [citation].) Nor does any other exception to the hearsay rule appear applicable." (People v. Reed, supra, 13 Cal.4th at p. 230, 52 Cal.Rptr.2d 106, 914 P.2d 184.)

In this case, unlike Reed, the probation report did contain admissions by defendant to the probation officer about the circumstances of the offense. Such a statement qualifies as admissible hearsay under Evidence Code section 1220. ³ This court so held in People v. Goodner (1990) 226 Cal.App.3d 609, 615-616, 276 Cal.Rptr. 542. Goodner agreed with precedent holding "that it is proper to use a defendant's statements contained in a probation report to determine the nature of a prior conviction under Evidence Code section 1220, the party admission exception to the hearsay rule." (226 Cal.App.3d at p. 615, 276 Cal.Rptr. 542.)

We recognize that Reed has subsequently questioned the reasoning of Goodner. But it did so on another ground. What Reed questioned was the recognition of "a nonstatutory exception to the hearsay rule, as articulated in People v. Castellanos " (1990) 219 Cal.App.3d 1163, 269 Cal.Rptr. 93 and repeated in Goodner. (People v. Reed, supra, 13...