People v. Bartow, A069963
| Court | California Court of Appeals |
| Writing for the Court | ANDERSON |
| Citation | 46 Cal.App.4th 1573,54 Cal.Rptr.2d 482 |
| Parties | , 96 Cal. Daily Op. Serv. 4920, 96 Daily Journal D.A.R. 7835 The PEOPLE, Plaintiff and Respondent, v. Rodney J. BARTOW, Defendant and Appellant. |
| Docket Number | No. A069963,A069963 |
| Decision Date | 28 June 1996 |
Kenneth L. Jesmore, San Francisco, for appellant.
Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald S. Matthias, Supervising Deputy Attorney General, David D. Salmon, Deputy Attorney General, for respondent.
Rodney J. Bartow (appellant) was found guilty by jury of the following offenses: (1) driving under the influence of alcohol causing injury (Veh.Code, § 23153, subd. (a)); (2) driving under the influence of an alcoholic beverage with a blood alcohol level of .08 percent or above (Veh.Code, § 23152, subd. (b)); and (3) hit and run driving, a misdemeanor (Veh.Code, § 20002, subd. (a)). In the second phase of a bifurcated trial the jury also found the following prior convictions true: (1) reckless driving involving alcohol (Veh.Code, § 23103.5); and (2) willful discharge of a firearm with gross negligence in which the appellant personally used a firearm in the commission of that offense (PEN.CODE, § 246.3)1. The latter section 246.3 allegation was also found by the court to be a prior "serious felony" conviction within the meaning of sections 667 and 1192.7, subdivision (c)(8).
Appellant was sentenced to state prison for four years as follows: two years for the first driving under the influence conviction, doubled to four years pursuant to section 667, subdivision (e)(1), six months for the hit and run driving conviction, to be served concurrently, and an additional two years for the other driving under the influence violation, which was stayed.
Appellant, driving with a blood-alcohol level of 0.19 percent, backed into a car in a parking lot. He left hurriedly, causing two bystanders to jump aside to avoid being hit. Appellant accelerated down the street, attempted to turn a corner at more than 50 miles per hour, lost control and spun broadside into a truck, knocking it into a building. His passenger, his wife, was injured.
The prosecution alleged that appellant's conduct in violating section 246.3 included the "personal use" of a firearm, even though the definition of that offense does not explicitly contain a "personal use" element. Appellant claimed, on the other hand, that neither the language of his plea nor the actual facts of commission of the offense support a finding of personal use of a firearm. He was originally tried by jury for this offense after having been held to answer following a preliminary hearing. At that trial his companion apparently testified that it was she who fired the gun; that jury deadlocked and a mistrial was declared. Appellant had been in custody for almost one year when the mistrial occurred, and he then decided to plead nolo contendere to the charge.
The court herein initially informed the jury that the second phase of the trial required the same jury to "determine ... the enhancement phase, as it is, of the allegations and in the information ... by the evidence provided, the arguments made and the matter [will be] submitted to you."
Following a recess the court reconvened outside the presence of the jury and, without explanation, announced that "the matter would proceed on paper." The court then discussed how one proves "personal use of a firearm" within the meaning of section 1192.7, subdivision (c)(8). After citing People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, People v. Piper (1986) 42 Cal.3d 471, 229 Cal.Rptr. 125, 722 P.2d 899, and People v. Gomez (1994) 24 Cal.App.4th 22, 29 Cal.Rptr.2d 94, the court determined "that there would be a limitation on the presentation of evidence to the record and that would be expended [sic ] by Gomez ... from Gu [errero ] to include the preliminary hearing transcript."
At this juncture the court ruminated that although witnesses for both sides were ready to testify concerning "personal use" of the firearm, it would create "a trial within a trial and a relitigation of what was had some years back." The court believed that under Guerrero and Gomez, "these matters proceed on paper as it is with findings that had been made." Yet, the court also realized that no findings on "personal use" had been made and that only one person, Officer Zanotti, had given testimony at the preliminary hearing. Both counsel appear to have acquiesced in the court's decision to forego the calling of live witnesses.
The only evidence allowed of the act constituting the alleged prior "serious felony" conviction was the preliminary hearing transcript of the testimony of Officer Zanotti, the arresting officer. According to Officer Zanotti, he responded to the report of an armed man inside a residence who refused to leave. As he approached the area, Officer Zanotti heard a gunshot come from the vicinity of appellant and a woman standing on a sidewalk behind a car. Zanotti saw appellant jump to his left, look down at his right hand and saw smoke coming from the area near his hand. Officer Zanotti ordered the couple down to the ground and to display their hands. Appellant reached behind his back and tossed a handgun about 15 feet away. Officer Zanotti testified that he did not see a gun when he heard the discharge.
Appellant challenges only the jury finding that his prior conviction for willful discharge of a firearm with gross negligence involved personal use of a firearm and, therefore, was a "serious felony" under sections 667, subdivision (d)(1) and 1192.7, subdivision (c)(8) He contends specifically that the court erred in (1) allowing the prosecution to introduce the transcript of the preliminary hearing, (2) refusing to allow the defense to introduce the probation report, and (3) refusing to allow the defense to introduce portions of the transcript of the jury mistrial which preceded appellant's plea of nolo contendere. He also contends that his prior conviction cannot serve as a serious felony enhancement because personal use of a firearm is an element thereof. We conclude that the trial court erred in precluding appellant from introducing certain evidence to contradict the prosecution's evidence that he personally used a firearm in the commission of the prior offense. This error requires reversal of the corresponding sentencing enhancement.
Appellant's argument that the court erred in admitting the transcript of the preliminary hearing to prove the "serious felony" nature of the prior conviction was recently decided against him by an unanimous Supreme Court in People v. Reed (1996) 13 Cal.4th 217, 52 Cal.Rptr.2d 106, 914 P.2d 184. Therein, the court first held that the preliminary hearing transcript excerpts were within "the record of the prior conviction, as required for their admission under People v. Guerrero, supra, 44 Cal.3d at page 355 [243 Cal.Rptr. 688, 748 P.2d 1150]." (Id., at p. 223, 52 Cal.Rptr.2d 106, 914 P.2d 184.) Recognizing that the transcript was hearsay, it found an exception for its admissibility as former testimony of an unavailable witness. (Evid.Code, § 1291, subd. (a).) The court reasoned that the witnesses at the preliminary hearing were "legally unavailable because, under the rule announced in People v. Guerrero, supra, 44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150], the prosecution was precluded from presenting any evidence outside the record of conviction to prove the circumstances of the prior crime." (Id., at p. 225, 52 Cal.Rptr.2d 106, 914 P.2d 184, italics in original.) Calling those witnesses would necessarily be "outside the record."
Apparently acquiescing in the correctness of the court's determination to proceed "on paper," appellant vigorously argues on appeal, as he did below, that he was denied fundamental due process when the court refused to allow him to introduce portions of the trial transcript--in particular, the testimony of his companion that "in fact the gun was hers or that she had fired the gun." The court's stated reason for denying admission of this prior testimony was that the jury "hung for whatever reason."
Reed teaches us that the threshold admissibility question is whether the item is within the "entire record of conviction" as required under People v. Guerrero. (People v. Reed, supra, 13 Cal.4th at p. 223, 52 Cal.Rptr.2d 106, 914 P.2d 184.) If it is, the court must then determine whether an exception to the hearsay rule authorizes its admission. Appellant urges us to find that the testimony was "an admission against her penal interest." We assume appellant refers to Evidence Code section 1230, which makes a hearsay statement admissible "if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest ... that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid.Code, § 1230.)
In Reed our Supreme Court concluded that the transcript of the preliminary hearing was part of the record of the prior conviction whether that term is used technically, as "equivalent to the record on appeal," or more narrowly "as referring only to those record documents reliably reflecting the facts of the offense for which the defendant was convicted." (People v. Reed, supra, 13 Cal.4th...
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