People v. Garcia

• Decision Date: 17 May 1988
• Docket Number: No. B020204,B020204
• Citation: 247 Cal.Rptr. 94,201 Cal.App.3d 324
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Masimo Matienso GARCIA, Defendant and Appellant. Crim.

Page 94

247 Cal.Rptr. 94

201 Cal.App.3d 324

The PEOPLE, Plaintiff and Respondent, v. Masimo Matienso GARCIA, Defendant and Appellant.

Crim. No. B020204.

Court of Appeal, Second District, Division 5, California.

May 17, 1988.

Review Denied Aug. 10, 1988.

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, Nancy Gaynor, Deputy State Public Defender, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John R. Gorey and William H. Davis, Jr., Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Acting Presiding Justice

By jury trial appellant Masimo Matienso Garcia was convicted of first degree murder with use of a firearm. (Pen.Code, §§ 187, 12022.5.) He admitted a prior conviction of a serious felony (Pen.Code, § 667, subd. (a)) and was sentenced to a total prison term of 32 years to life.

On December 25, 1984, appellant shot and killed the victim at a park at 6th and Gladys. An eyewitness, Osvaldo Machado, observed the killing from a few feet away. Mr. Machado saw appellant arrive in a car. Appellant got out of the car with his hand in a knapsack, while another person remained in the car. Appellant came up to a park bench where the victim was sitting and said, "Pay me the $200." The victim responded, "that he didn't have any money now, that he would pay him when he could." Appellant grabbed the victim by the shirt, but the victim responded, "You're not going to scare me." Appellant pulled a gun out of his knapsack and shot the victim in the thigh and chest, the latter wound being fatal. Appellant retreated to the car and left.

Mr. Machado had seen appellant in the park several times before; he assisted a police artist to make a sketch of the suspect, a copy of which was introduced at trial; he picked appellant's photo out of a photo showup, later introduced at trial; and he positively identified appellant at trial.

Appellant testified in his own defense, denying the crime and claiming that he had been home all day. His alibi was impeached by prior inconsistent statements of appellant and his wife. Appellant was further impeached by his prior conviction of a felony.

Appellant raises three issues on appeal. There is no merit to his contentions that admission of a photograph of the police artist's sketch violated the best evidence rule (Evid.Code, § 1500), or that the trial court failed to exercise its discretion under People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, in determining that appellant could be impeached by his prior felony conviction. Appellant correctly contends, however, that his admission of the prior conviction for purposes of Penal Code section 667 was defective because the record does not contain an adequate explicit enumeration and waiver of his constitutional rights. (In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561.)

BEST EVIDENCE RULE

The trial court admitted into evidence People's exhibit 5, a color photograph of a sketch of the suspect, prepared by a police artist with the assistance of the eyewitness. Prior to trial, defense counsel objected to use of the photograph, based on the best evidence rule (Evid.Code, § 1500), and demanded that the prosecutor produce the original of the sketch. ¹ The prosecutor replied, "I believe under the new Evidence Code section the People are not required to produce an original of any document ... unless there is an actual real dispute as to the authenticity of the particular item being used." After hearing argument and the prosecutor's offer of proof, the court overruled the defense objection.

This trial was conducted on January 15, 1986, and obviously the prosecutor was referring to Evidence Code section 1511, as added by Statutes 1985 chapter 100, section 2. Evidence Code section 1511 provides, "A duplicate is admissible to the same extent as an original unless (a) a genuine question is raised as to the authenticity of the original or (b) in the circumstances it would be unfair to admit the duplicate in lieu of the original." A "duplicate" is defined by Evidence Code section 260 as "a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent As enacted in 1985, section 1511 brings California into line with the Federal Rules of Evidence on the admissibility of duplicates. (Fed.Rules Evid., rule 1003, 28 U.S.C.; 2 Witkin, Cal.Evidence (3d ed. 1986) § 929, pp. 888-889; 17 Pacific L.J. 727 (1986).) This change was advocated by the California Law Revision Commission as early as 1975, because "[t]he development of accurate methods of copying documents and writings and the commonplace use of methods of reproduction which produce copies identical to the original have resulted in a reexamination by the courts and evidence authorities of the need for the production of original writings as required by the 'best evidence rule.' " (13 Cal.Law Rev.Comm.Reports 2119 (1975); see McCormick on Evidence (3d ed. 1984) 712-714.)

technique which accurately reproduces the original." (Emphasis added.)

Appellant contends (1) the prosecution did not lay a proper foundation for admission of the photograph as a duplicate and (2) it was unfair, within the meaning of Evidence Code section 1511, to use the photograph in lieu of the original sketch. We find no merit to either contention.

The foundation for admission of a writing or copy is satisfied by the introduction of evidence sufficient to sustain a finding that the writing and copy are what the proponent of the evidence claims them to be. (Evid.Code §§ 1400, 1401; McAllister v. George (1977) 73 Cal.App.3d 258, 262, 140 Cal.Rptr. 702.)

Contrary to appellant's contention, the prosecution made such preliminary showing here. The eyewitness testified that he gave a description of the suspect to the police, that he met with a police artist to make a drawing of the suspect, and that he recognized People's exhibit 5 as similar or the same as the sketch he had the artist draw. In addition, a police detective testified that he and the eyewitness met with the police artist, who made a composite drawing of the suspect in his presence, and that he recognized the drawing depicted in exhibit 5.

Appellant complains that since the eyewitness described the photograph as similar or the same as the sketch, the record is susceptible to an inference the photograph was not completely accurate. ² The existence of this possible conflicting inference goes to the weight rather than the admissibility of the photograph, because conflicting inferences are for the jury to resolve. ( McAllister v. George, supra, 73 Cal.App.3d at 262, 263, 140 Cal.Rptr. 702.) The evidence was sufficient to sustain a finding that an original sketch was made and that exhibit 5 was a photograph accurately reflecting it, therefore the authentication required for admission as a duplicate was satisfied.

Under Federal Rule of Evidence 1003, which is identical to Evidence Code section 1511, the burden is on the opponent to raise a genuine issue as to authenticity of the original or to show that under the circumstances it would be unfair to use the duplicate in lieu of the original. (United States v. Shabazz (11th Cir.1984) 724 F.2d 1536, 1539; United States v. Leight (7th Cir.1987) 818 F.2d 1297, 1305, disapproved on other grounds in Huddleston v. United States (1988) 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771; United States v. DiMatteo (11th Cir.1983) 716 F.2d 1361, 1368, vacated on other grounds 469 U.S. 1101, 105 S.Ct. 769, 83 L.Ed.2d 767 (1985); United States v. Georgalis (5th Cir.1980) 631 F.2d 1199, 1205; United States v. Patten (2d Cir.1987) 826 F.2d 198, 199; United States v. Garmany (11th Cir.1985) 762 F.2d 929, 938; United States v. Morgan (9th Cir.1977) 555 F.2d 238, 243.) Appellant raised no genuine issue of authenticity There is likewise no merit to appellant's contention that in the circumstances of this case it was unfair to use the duplicate. The opponent of the evidence has the burden of showing the unfairness; such a claim must be based on substance, not mere speculation that the original might contain some relevant difference. ( United States v. Leight, supra, 818 F.2d at p. 1305; United States v. Patten, supra, 826 F.2d at p. 199; United States v. Jarrett (7th Cir.1983) 705 F.2d 198, 208.) Appellant made no such showing at trial. On appeal he contends unfairness is shown simply because the police or prosecution had exclusive control of the original and appellant's trial counsel stated he had not seen the original. This would not mandate production of the original. In United States v. Georgalis, supra, the court stated that the government's exclusive possession for five years of the originals of various letters "raises no issue" of authenticity or unfairness of substituting duplicates for the originals. (631 F.2d at 1205.) In the absence of a finding of unfairness there is no requirement that the proponent demonstrate it cannot produce the original. ( United States v. Patten, supra, 826 F.2d at 199.)

at trial. (United States v. Shabazz, supra; United States v. Patten, supra.)

Recognizing the accuracy of modern methods of reproducing writings, Evidence Code section 1511 relies on the wise discretion of trial courts to determine those particular circumstances in which it is unfair to use a duplicate in lieu of the original. Appellant has not demonstrated that the trial court abused its discretion, therefore we uphold the trial court's ruling.

IMPEACHMENT WITH PRIOR CONVICTION

The trial court ruled that if appellant testified he could be impeached by his 1981 felony conviction of robbery. The record shows the court was well aware of the then recent decision in People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111,...