People v. Garcia

• Decision Date: 14 July 1986
• Citation: 183 Cal.App.3d 335,228 Cal.Rptr. 87
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ernest Joseph GARCIA, Defendant and Appellant. H000716.

Page 87

228 Cal.Rptr. 87

183 Cal.App.3d 335

The PEOPLE, Plaintiff and Respondent, v. Ernest Joseph GARCIA, Defendant and Appellant.

H000716.

Court of Appeal, Sixth District, California.

July 14, 1986.

Conflicts Admin., In Association with Nancy Myers, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Joyce E. Hee, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

BRAUER, Associate Justice.

A jury found appellant Ernest Joseph Garcia guilty of the crimes of (1) burglary of an inhabited dwelling, and (2) being a convicted felon in possession of a concealable firearm. (Pen. Code, §§ 459, 460, 12021.) The jury also found it true that Garcia previously had been convicted of (3) a "residential burglary," and (4) possession of heroin. (Pen. Code, §§ 459, 460; Health & Saf. Code, § 11350.) Garcia was sentenced to a term of twelve years and eight months in the state prison. (Pen. Code, §§ 461, 667, 667.5.) He appeals from the judgment of conviction. (Pen. Code, § 1237, subd. (a).)

On appeal Garcia points to four alleged errors which, he contends, compel a reversal of the judgment. Specifically, Garcia claims:

1. The trial court erred (a) in rejecting his offer to stipulate to the fact of the previous burglary conviction, and (b) in allowing the prosecutor to present evidence of the burglary conviction (instead of the narcotics conviction) as an element of the felon-in-possession charge;

2. The court erred in refusing to admit certain fingerprint cards in evidence;

3. The court erred in denying his "Hitch" motion (People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361), which was based upon an officer's loss of handwritten notes; and

4. The court erred in imposing the upper term on the burglary count, because there was no evidence that Garcia was armed with a weapon in the commission of the burglary.

Upon a review of the record we find no reversible error, and we therefore affirm the judgment.

I. BASIC BACKGROUND

At about 1:10 a.m. on December 26, 1984, Surendra Amin was awakened by strange noises in his house. At first he thought that his children were raiding the refrigerator, but he found all of them asleep. Amin shouted, "Who is it," and then he heard someone running and the front door closing. Amin opened the door and observed, from a distance of 20-25 feet, a man running down the driveway. The man was wearing a distinctive long-sleeve shirt with horizontal stripes in alternating colors of white and maroon. Amin chased the man to a nearby intersection and then lost sight of him.

While the chase was in progress Amin's daughter called the police. The police found appellant Garcia, wearing the distinctive shirt inside out, about 75 yards away from Amin's house. Two officers detained Garcia while a third officer collected Amin and brought him to the scene. Amin identified Garcia as the man he had been chasing. Garcia was placed under arrest and transported to the police station. There the police searched him and found 34 Winchester .22 caliber bullets in the pocket of his shirt. Amin himself owned no bullets.

Investigation revealed that Amin's garage had been broken into, and that his kitchen, right next to the garage, had been entered. Amin's power tools were stacked in the center of the garage. Near the door leading into the house was an empty box for .22 caliber Winchester bullets. Scattered around the garage floor were 12 .22 caliber Winchester bullets.

Outside the garage, near the garage door, rested a set of tire-changing tools and a flashlight. On a low wall near the tools lay a .22 caliber handgun, with its safety mechanism off, containing one round in its chamber and six rounds in its clip. The gun could be fired immediately. Amin did not own the gun.

The police made an effort to secure fingerprint evidence from the garage, but they obtained only smudges.

Shortly after the arrest Officer Charles Burde interviewed Garcia at the police station. The tape recorders in the interview room were broken, and so the interview was not recorded. Burde took notes of the interview, and he described the notes as follows: "They were very short scratches, little notes of the important things as I saw them. And the things that I saw as important were only about four or five of them." Within a matter of hours Burde dictated a formal report based in part upon his handwritten "scratches." The formal report contained everything that Burde had written. According to his best recollection, Burde put his handwritten notes into the case file. But at the time of trial the notes could not be found.

Before the instant offense Garcia had been convicted of (1) possession of heroin in 1977, and (2) burglary of a residence in 1981. In 1984 Garcia was still on parole.

II. THE AMENDED INFORMATION AND THE MOTIONS IN LIMINE

In superior court Garcia initially was charged in three counts, as follows: (1) burglary of an inhabited dwelling, (2) burglary of a Toyota truck, and (3) possession of a concealable firearm by an ex-felon. In support of the third count the original information alleged that Garcia had previously been convicted of a residential burglary and of possession of heroin. The information also alleged both priors as sentence enhancements, along with a third prior of assault upon a peace officer.

Shortly before trial the prosecution presented an amended information "to correct priors." The original three counts remained the same; the enhancement allegation relating to assault upon a peace officer was deleted; and the enhancement relating to possession of heroin was elevated to a "prison prior" within the meaning of Penal Code section 667.5. ¹

Defense counsel protested that the amendment was tardy, but the trial court nevertheless accepted it. Garcia pled not guilty to the amended information and denied each of the alleged priors. Defense counsel then moved to sever count three (i.e., the "ex-con-in-possession" count). The trial court denied the motion. The district attorney moved to dismiss count two (i.e., the alleged burglary of a Toyota truck) because an essential witness could not be found. That motion was granted. The result was an amended information which alleged (1) in count one, burglary of an inhabited dwelling, (2) in count two, possession of a concealable firearm by an ex-felon (further alleging previous convictions of residential burglary and possession of heroin), and (3) both prior convictions as enhancements. At that point a jury was chosen and sworn.

Then defense counsel, outside the presence of the jury, embarked upon a series of motions in limine. Among other things, counsel moved (a) for the admission of certain fingerprint cards in evidence, ² and (b) for the exclusion of Officer Burde's testimony because his handwritten notes of his interview with Garcia had been lost. Both of those motions were denied, and we deal with those rulings in separate parts of our opinion, post.

While the in limine motions were in progress the district attorney moved to delete the allegation of the prior heroin conviction from count two of the amended information. ³ Defense counsel objected ⁴ and offered to stipulate to the existence of the prior convictions. He further urged the court to compel the district attorney to accept the stipulation.

The trial court, after pondering the matter overnight, concluded that because of Proposition 8 (i.e., Cal. Const., art I, § 28, subd. (f)) ⁵ it had no discretion to insist that the district attorney allege and prove the heroin prior instead of the burglary prior. The court further ruled that it had no discretion to insist that the district attorney accept defense counsel's stipulation.

As a result the amended information in its final form accused Garcia (1) in count one, of burglary of an inhabited dwelling, and (2) in count two, of being a previously-convicted residential burglar in possession of a concealable firearm. The alleged enhancements remained the same. In this posture the case went to trial.

III. PROOF OF THE PRIOR BURGLARY AS AN ELEMENT OF COUNT TWO

A. Effect of Proposition 8

In People v. Hall, supra, 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826 the California Supreme Court held "that in a prosecution for violating [Penal Code] section 12021 the element of a prior conviction of a felony may not be given to a jury if the accused stipulates to it. This rule applies unless the state can clearly demonstrate that its application will legitimately impair the prosecutor's case or preclude presentation of alternate theories of guilt." (Id. at p. 156, 167 Cal.Rptr. 844, 616 P.2d 826, emphasis in original, fn. omitted.) The court reasoned, among other things, that once an accused admits the prior felony conviction, there is no disputed issue of fact on that point within the meaning of Evidence Code section 210, ⁶ and so "proof of the nature of the felony was irrelevant and therefore inadmissible." (Id., at pp. 151-153, 167 Cal.Rptr. 844, 616 P.2d 826; see also People v. Sherren, supra, 89 Cal.App.3d 752, 758-760, 152 Cal.Rptr. 828.)

Voter approval of Proposition 8 in 1982 added section 28 to article I of the California Constitution. Subdivision (f) of section 28 deals with the use of prior felony convictions. The second sentence of subdivision (f) reads thus: "When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court." (Emphasis added.) As of this writing the California Supreme Court has not squarely addressed the meaning of that second sentence. ⁷ But two Courts of Appeal have held that subdivision (f) was intended by the voters to overturn the Supreme Court's opinion in People v. Hall, supra, 28 Cal.3d 143, 151-153, 167 Cal.Rptr. 844, 616 P.2d 826. (People v. Ancira (1985) 164 Cal.App.3d 378, 381, 210 Cal.Rptr. 527, hg. den. (1985); People v. Callegri (1984) 154 Cal.App.3d 856, 866-867, 202 Cal.Rptr....