People v. Castellanos

• Decision Date: 25 April 1990
• Docket Number: No. D009264,D009264
• Citation: 269 Cal.Rptr. 93,219 Cal.App.3d 1163
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gilbert Joseph CASTELLANOS, Defendant and Appellant.

Page 93

269 Cal.Rptr. 93

219 Cal.App.3d 1163

The PEOPLE, Plaintiff and Respondent, v. Gilbert Joseph CASTELLANOS, Defendant and Appellant.

No. D009264.

Court of Appeal, Fourth District, Division 1, California.

April 25, 1990.

As Modified on Denial of Rehearing May 11, 1990.

Review Denied Aug. 23, 1990.

[219 Cal.App.3d 1166] Hayes H. Gable, III, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Rudolf Corona, Jr., and Robert M. Foster, Supervising Deputy Attys. Gen., for plaintiff and respondent.

HUFFMAN, Associate Justice.

After pleading guilty to first degree residential burglary (Pen.Code, §§ 459, 460), ¹ Gilbert Joseph Castellanos waived his right to a jury trial on the allegations he was convicted of three earlier residential burglaries (§ 459) and one earlier attempted residential burglary (§§ 664, 459), each separately brought and tried within the meaning of sections 667(a) ² and 1192.7(c)(18), ³ and had served two separate prior prison terms within the meaning of section 667.5(b). The trial court found the prior residential burglary (and attempted residential burglary) allegations and one of the prison priors to be true and sentenced Castellanos to a 26-year prison term, consisting of the upper 6-year term on the burglary charge and an additional 20 years for the prior conviction enhancements.

Castellanos appeals, contending the trial court improperly considered the transcripts of the preliminary hearings in each prior conviction file to determine he had previously burglarized or attempted to burglarize four separate inhabited dwellings. He specifically argues the admission of the transcripts was error because they are not part of the "record of conviction," they constitute inadmissible hearsay, and their admission violates his constitutional right of confrontation. In addition, he challenges the sufficiency of the evidence in the record to sustain the true findings for the 1978 and 1980 priors and argues the erroneous admission of the preliminary hearing transcripts taints the sufficiency of the evidence as to the true findings on the 1981 and 1984 priors. We conclude the trial court properly considered the transcripts of the preliminary hearings to determine the nature of the burglary underlying each prior conviction and also conclude there is sufficient evidence in the record to support the trial court's finding each alleged earlier burglary or attempted burglary was of an inhabited dwelling. Accordingly, we affirm.

BACKGROUND

On April 21, 1988, Castellanos was caught in the act of burglarizing an inhabited On August 8, 1988, Castellanos pleaded guilty to first degree residential burglary as charged in count 1 and waived his right to a jury trial on the issue of the priors. At the trial on the enhancements on August 22, 1988, Castellanos stipulated he was the person named and involved in the four priors before the court. The People then offered as evidence 20 exhibits concerning the 4 earlier cases. Castellanos objected to the admission into evidence of each preliminary hearing transcript and probation report offered as evidence on grounds they were hearsay and admission would violate his Sixth Amendment right to cross-examine and confront witnesses. After hearing arguments on the issue of admissibility of the objected to exhibits, the court took the matter under submission and heard further argument on what the evidence would prove, subject to its admissibility.

home. An information was filed charging him with this residential burglary and alleging he had previously suffered four serious felony convictions. A supplemental information was then filed alleging he had also served two prior separate prison terms.

On September 13, 1988, in open court, the trial court issued its ruling. Relying on People v. Batista (1988) 201 Cal.App.3d 1288, 248 Cal.Rptr. 46, the court admitted into evidence everything offered from the files of the prior cases except the probation reports. Based on the evidence admitted, the court made the following comments and findings as to each specific prior:

"Okay, as to the CR number 65911, the [April 26, 1984] serious felony prior, the court reviewed the superior court information and the executed change of plea form in that case. The court reviewed People's 3, the transcript of the change of plea and I reviewed the preliminary hearing transcript specifically the testimony of Nancy Jean Cantor, and after reviewing those documents, the court is satisfied beyond a reasonable doubt that the building entered was a ... residence....

". . . . .

"As to CR 54916 [the November 23, 1981 prior], I reviewed People's exhibit 6, which was the testimony of Georgia Burn, that I also reviewed, and based on a review of those documents, it appears to the court that the People have established beyond a reasonable doubt that the dwelling in that case was a residence. ⁴

"As to CR 49698 [the May 12, 1980 prior], the court reviewed People's 9, superior court documents and the court reviewed the information, the executed change of plea form. The court reviewed ... People's 10, which was the preliminary hearing transcript, specifically the testimony of Janet Counts ... regarding the furnished apartment there, and the court is satisfied that the ... dwelling there was a residence.

"As to CR 42211 [the February 3, 1978 prior], the court reviewed People's 14, which were superior court documents, specifically the information there, and the court further reviewed the People's exhibit 15 of the preliminary hearing transcript, specifically the testimony of Cynthia Butler, ... Barry Schrenkgost, ... and the testimony of Wiley Jones, and the court is satisfied that the buildings entered in that case were residences.

"Okay, having made those comments, then the court is satisfied beyond a reasonable doubt that the People have met their [burden] in establishing the ... buildings to be residences, within the meaning of [sections 667(a) and 1192.7(c)(18) ]."

The court thereafter heard argument on the validity of the two prison prior allegations and determined only one was proved beyond a reasonable doubt.

On October 27, 1988, after considering the probation report, statements in aggravation and mitigation, letters in support of Castellanos timely filed an appeal challenging imposition of the prior enhancements. With this background in mind, we turn to his contentions.

Castellanos, hearing [219 Cal.App.3d 1169] argument of counsel and Castellanos himself, the court denied probation and imposed the upper six-year term for the residential burglary in this case. It then added "the five additional years [for] each of the four separate serious felony prior convictions, which [the court] found to be true ... [for] an additional 20 years....", and stayed imposition of the one year for the prison prior pursuant to section 654.

DISCUSSION

Castellanos's basic contention is that the admission into evidence of the preliminary hearing transcripts was error because they are not part of the "record of conviction," they are inadmissible hearsay and their admission violates his right to confront witnesses. He further claims the evidence presented to the court was insufficient to show his 1978 and 1980 prior convictions were serious felonies within the meaning of sections 667 and 1192.7 and that the admission of the preliminary hearing transcripts taints the sufficiency of the findings his 1981 and 1984 priors were serious felonies under sections 667 and 1192.7.

Preliminarily, we note the attorney general in its respondent's brief asks us to determine the trial court erroneously excluded the probation reports in each prior case as evidence from which it could ascertain the nature of the respective burglaries involved. Because we conclude the preliminary transcripts in each case were properly considered by the trial court and there was sufficient evidence in the record from which the trial court could determine beyond a reasonable doubt the burglaries involved in the four prior allegations were residential in nature constituting serious felony priors under sections 667 and 1192.7, it is unnecessary to also determine whether the court could have properly considered the entire probation reports in those earlier cases. ⁵ (See People v. Braeseke (1979) 25 Cal.3d 691, 698-701, 159 Cal.Rptr. 684, 602 P.2d 384, vacated (1980) 446 U.S. 932, 100 S.Ct. 2147, 64 L.Ed.2d 784, reiterated (1980) 28 Cal.3d 86, 168 Cal.Rptr. 603, 618 P.2d 149.)

I The Preliminary Hearing Transcript

A. The Record of Conviction

Returning to the issues at hand, Castellanos recognizes People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150 decided "in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction." He asserts, however, a transcript of a preliminary hearing is not part of that record. We disagree.

In Guerrero, our Supreme Court overruled People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, which held "proof that a prior conviction was a 'serious felony' for the purpose of the five-year enhancement under sections 667 and 1192.7(c) was limited to matters necessarily established by the prior judgment of conviction." (People v. Guerrero, supra, 44 Cal.3d 343 at p. 348, 243 Cal.Rptr. 688, 748 P.2d 1150.) The court in Alfaro had delineated the term " 'record of the conviction' " as referring to "the judgment, and matters necessarily adjudicated therein." (People v. Alfaro, supra, 42 Cal.3d at p. 636, 230 Cal.Rptr. 129, 724 P.2d 1154.) It specifically held the court could not consider the pleadings and court records in determining whether the earlier burglary was residential; that the court could not look beyond the elements necessarily established by the earlier conviction to determine if it...