People v. Dunlap

• Decision Date: 22 September 1993
• Docket Number: No. F018550,F018550
• Citation: 18 Cal.App.4th 1468,23 Cal.Rptr.2d 204
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Randle Eugene DUNLAP, Defendant and Appellant.

Page 204

23 Cal.Rptr.2d 204

18 Cal.App.4th 1468

The PEOPLE, Plaintiff and Respondent, v. Randle Eugene DUNLAP, Defendant and Appellant.

No. F018550.

Court of Appeal, Fifth District, California.

Sept. 22, 1993.

Certified for Partial Publication. ^*

Review Denied Dec. 16, 1993.

[18 Cal.App.4th 1470] John R. Brazier, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Cynthia G. Besemer and Gelacio L. Bayani, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THAXTER, Associate Justice.

In the published portion of this opinion we hold that the trial court properly admitted a California Law Enforcement Telecommunications System (CLETS) computer printout of appellant's criminal information history (rap sheet) under the official records exception to the hearsay rule (Evid.Code, § 1280) as evidence that appellant served two prior prison terms for which his sentence in this action was enhanced. In doing so we rely on judicial notice of pertinent statutes and the presumption that official duty was regularly performed (Evid.Code, § 664).

In the unpublished portion of the opinion we reject appellant's claims of prejudicial instructional error. We will affirm the judgment based on a jury verdict convicting appellant of three felonies: second degree robbery (PEN.CODE, § 212.5¹, subd. (b)), vehicle theft (Veh.Code, § 10851, subd. (a)), and reckless driving while fleeing a peace officer (Veh.Code, § 2800.2), and one misdemeanor, willful interference with a peace officer (§ 148), and a separate verdict finding appellant served separate prison terms for two prior felony convictions (§ 667.5, subd. (b)).

Facts ^**

DISCUSSION

I-II. ^***

III. Admission of the CLETS rap sheet as evidence appellant served prior prison terms was proper.

The sole evidence submitted below to support the enhancement allegations were abstracts of judgment of the two prior convictions, a booking sheet, and a CLETS rap sheet.

The two abstracts of judgment were for a 1985 Kern County conviction for escape (§ 4532) and for a 1990 Riverside County conviction for possession of a gun by an ex-felon (§ 12021). The former shows that appellant was sentenced to prison on April 19, 1985, for 1 year and 1 day, with no credit for time served; the latter shows a September 5, 1990, prison commitment for 2 years, with 181 days of credit.

The CLETS rap sheet was offered to show appellant's aliases (in order to link appellant, through various spellings of his name, to the abstracts of judgment from the prior convictions), and to demonstrate that appellant had served a separate prison term for each of the prior convictions and had not stayed free of prison custody for a five-year period (see § 667.5, subd. (b)). It consisted of a seven-page computer printout, was labeled "CLETS DATA BASE RESPONSE FOR JTC KERN COUNTY SHERIFF," and was dated August 18, 1992. The first page was stamped as follows:

"District Attorney's Office

"County of Kern Bakersfield, California

"This is to certify that the above is a true and original document received from the California Law Enforcement Telecommunications System, by the District Attorney's Discovery Unit."

Directly under the preceding paragraph were spaces for the date and a clerk's name; hand-written into these spaces was the date "8-18-92" and an illegible name or set of initials.

Appellant objected to the admissibility of the rap sheet. That objection was on the theory of lack of foundation and relied on People v. Matthews (1991) 229 Cal.App.3d 930, 280 Cal.Rptr. 134. Later defense counsel also added as reasons for exclusion the hearsay rule and Evidence Code section 352.

"I think the whole thing could be resolved if somebody was in here to indicate the reliability of the entries in CLETS. We don't have that person. I still think this document, despite a nice stamp here in the lower right-hand corner, is still lacking in proper authentication and constitutes hearsay and should be kept out under Evidence Code 352, if for no other reason."

The court overruled appellant's hearsay and foundation objections. In response to the Evidence Code section 352 objection, the court noted that portions of the exhibit not directly relevant to the purposes for which it was offered were indeed prejudicial to appellant. The court therefore directed the prosecutor to mark those portions of the rap sheet directly relevant to the purposes for which it was offered, obtained a concession from defense counsel (with no waiver of the objection) that the marked portions were indeed relevant, and ordered the remainder of the rap sheet excised.

Appellant contends that his rap sheet was inadmissible for failure to comply with section 969b. ³ Appellant also relies on People v. Matthews, supra, 229 Cal.App.3d 930, 280 Cal.Rptr. 134 for the proposition that "other than certified prison records, only the 'record of conviction' is admissible to prove a prior conviction." (Id. at pp. 940-941, 280 Cal.Rptr. 134.)

Respondent concedes that the rap sheet does not qualify as a record described in section 969b, but argues it was nonetheless admissible as an official record under Evidence Code section 1280.

A. People v. Matthews

In People v. Matthews, supra, 229 Cal.App.3d 930, 280 Cal.Rptr. 134, the information charged that the defendant, Terrance Lewis Matthews, suffered several prior felony convictions, including one in 1984 for robbery, a serious felony within the meaning of section 667. As proof of that conviction, the prosecutor offered a certified copy of a San Francisco Superior Court record indicating that "Carl Tyrone Matthews" was convicted of robbery in that court on April 24, 1984, and two uncertified computer printouts referring to "Terry Matthews." ⁴ One printout was from the San Francisco Police Department, and it contained information consistent with the court record of the robbery conviction except for the name difference. The second printout was unlabeled. It contained criminal history for a subject identified as Terry Matthews, listing 12 aliases, including "Carl T. Matthews." It also referred to a robbery conviction with information consistent with the court record. (People v. Matthews, supra, 229 Cal.App.3d at p. 934, 280 Cal.Rptr. 134.)

The prosecution presented testimony by the San Francisco Police Department Identification Bureau's custodian of records, who maintained custody of a criminal jacket which included the computer printouts. He testified they were made during the regular course of the identification bureau's business, at or near the condition or event memorialized therein. He also said he was familiar with the mode of preparation of the rap sheets but was not asked to and did not explain the manner in which they were prepared. Neither did he identify the sources of information on which they were based. (229 Cal.App.3d at pp. 935, 939-940, 280 Cal.Rptr. 134.)

The defendant objected to admission of the computer printouts on hearsay and lack of foundation grounds. The trial court admitted the documents as "business records" under Evidence Code section 1271 and, relying on them, found that the defendant had suffered the 1984 robbery conviction.

The appellate court held that proper foundation had not been presented to qualify the rap sheets under either the business record or the official record exceptions to the hearsay rule. (229 Cal.App.3d at p. 940, 280 Cal.Rptr. 134.) Because the only evidence tying the defendant (Terrance Lewis Matthews) to the robbery conviction was contained in the inadmissible computer-generated rap sheets, the court modified the judgment by striking the enhancement based on that conviction. (Id. at p. 941, 280 Cal.Rptr. 134.)

In its discussion, the Matthews court made a statement, relied upon by appellant here, to the effect that a prior conviction may be proved only through the "record of conviction" or certified prison records under section 969b. If that is a correct statement of law, the computer printout of appellant's criminal history was improperly admitted because it was neither a certified prison record ⁵ nor part of the record of conviction.

We first note that the Matthews court's statement relied on by appellant appears to have been dictum. Because the court had already concluded that the rap sheets were inadmissible under any recognized exception to the hearsay rule, its statement that evidence of the "record of conviction" or compliance with section 969b are the exclusive means of proving a prior conviction seems unnecessary for the actual decision. Additionally, we do not believe the statement is supported by the authority cited by the Matthews court under the factual situations present there and in this case.

The only authority relied on by the Matthews court for its conclusion are decisions in which the question was not whether the defendant had been convicted, but whether the conviction was for conduct of a particular type. (People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150; People v. Castellanos (1990) 219 Cal.App.3d 1163, 269 Cal.Rptr. 93; People v. Rhoden (1989) 216 Cal.App.3d 1242, 265 Cal.Rptr. 355.)

In Guerrero, the defendant was charged with two prior serious felony convictions, both for residential burglary. The evidence submitted as proof of each prior included records of an accusatory pleading charging a residential burglary and the defendant's plea of guilty or nolo contendere. (44 Cal.3d at p. 345, 243 Cal.Rptr. 688, 748 P.2d 1150.) On appeal, the defendant contended the trial court erred by considering evidence beyond the judgment of conviction. The Supreme Court disagreed, holding that the trial court properly looked to "the entire record of the conviction." (Id. at pp. 355-356, 243 Cal.Rptr. 688, 748 P.2d 1150.) In doing so, the Supreme Court overruled its earlier decision in...