People v. Garcia

• Decision Date: 30 November 1989
• Docket Number: No. D009697,D009697
• Citation: 264 Cal.Rptr. 662,216 Cal.App.3d 233
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Luis GARCIA, Defendant and Appellant.

Page 662

264 Cal.Rptr. 662

216 Cal.App.3d 233

The PEOPLE, Plaintiff and Respondent, v. Jose Luis GARCIA, Defendant and Appellant.

No. D009697.

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

Nov. 30, 1989.

Review Denied March 15, 1990.

Michael McPartland, 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. and Steven H. Zeigen, Deputy Atty. Gen., for plaintiff and respondent.

HUFFMAN, Associate Justice.

A jury convicted Jose Luis Garcia of burglary of an inhabited dwelling (Pen.Code, §§ 459 & 460). ¹ The court then found Garcia had a prior serious felony conviction (burglary of an inhabited dwelling) (§§ 667, subd. (a) ², 1192.7, subd. (c)(18)) ³ and sentenced him to prison for a six-year term for the burglary conviction and a consecutive five-year term for the prior serious felony conviction. ⁴ Garcia appeals, contending the court improperly considered a probation officer's report from the prior conviction file to determine he had burglarized an inhabited dwelling. We conclude Garcia's statements contained in the probation report were properly used to determine the nature of the burglary. We decline to address whether other material in the probation report may be used to determine if the prior conviction is a "serious felony."

FACTUAL AND PROCEDURAL BACKGROUND ⁵

In May 1981, Garcia pleaded guilty to one count of second degree burglary and one count of receiving stolen property in case number 53394. After Garcia's present conviction the People submitted certified copies of the information and Garcia's change of plea form from case number 53394 to prove Garcia had a prior serious felony conviction.

The information in case number 53394 charged Garcia with four counts of "unlawfully enter[ing] a building with intent to "... [I]f, in fact, the court were confined to the four corners of [the information and the change of plea], the court would conclude that the entry of a house, without any modifiers, would in fact be insufficient, and certainly not sufficient to establish a serious felony prior pursuant to 1192. (7)(c)(18)."

                commit theft" and four [216 Cal.App.3d 236] counts of receiving stolen property.  Four victims were named.  In the change of plea form Garcia declared he violated section 459 by "entering a house with intent to steal."   In the present case the court stated
                

Thereafter, on its own motion the court took judicial notice of the prior conviction file. ⁶ Over Garcia's hearsay objection the court considered the probation officer's report which stated Garcia committed second degree residential burglary and Garcia admitted being involved in residential burglary to support his heroin habit. After reviewing the probation report the court concluded:

"With reference to [Garcia's] statements, I would note an admission by [Garcia] that he participated in the residential burglary to support a habit, 'a family operation,' as it was described by [Garcia].

"......................

"Amongst other things it describes the manner of entry.

"Taken in toto, the court would have to be blind not to conclude that what happened in this instance was Mr. Garcia entered into an occupied residence of Miss Mary Streck with the intent to steal personal property contained therein, a serious felony as alleged in the information."

DISCUSSION

I

Garcia contends the probation officer's report was inadmissible hearsay and violated his right to confront witnesses. He claims the statements contained in that report, even if admissible, are insufficient to show his prior conviction was a serious felony within the meaning of sections 667 and 1192.7.

In People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150, the Supreme Court held to enhance sentences under the habitual criminal provisions of section 667, "the trier of fact may look to the entire record of the conviction" to determine "the truth of a prior-conviction allegation." The court in Guerrero expressly overruled People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154 which limited the trier of fact's application of section 667 to offenses contained in the prior conviction judgment. In Guerrero, the trial court correctly imposed an enhancement based on "an accusatory pleading charging a residential burglary and defendant's plea of guilty or nolo contendere, ..." (People v. Guerrero, supra, 44 Cal.3d at p. 345, 243 Cal.Rptr. 688, 748 P.2d 1150.) However, the Supreme Court noted it did not resolve which items in the record of conviction are admissible and for what purpose. In a particular case "the application of the rule set forth herein might violate the constitutional rights of a criminal defendant." (Id. at p. 356, fn. 1, 243 Cal.Rptr. 688, 748 P.2d 1150.)

A variety of items from a prior conviction file have been held proper for consideration after Guerrero. In People v. Carr (1988) 204 Cal.App.3d 774, 778, 251 Cal.Rptr. 458, the court considered a change of We recognize a probation report often contains hearsay matter. Indeed section 1203 contemplates and allows hearsay information within probation reports. (People v. Lockwood (1967) 253 Cal.App.2d 75, 76, 61 Cal.Rptr. 131.) If a defendant contends the hearsay information is unfair or untrue he is given an opportunity to refute it. (People v. Barajas (1972) 26 Cal.App.3d 932, 103 Cal.Rptr. 405.) Here the trial court specifically focused on Garcia's statements related by the probation officer, finding the statements constituted an admission. Garcia had an opportunity to dispute his purported admission in the prior proceeding. He was also entitled to present rebuttal evidence before the trial court and did not. Garcia was given adequate opportunity to challenge the evidence presented against him. We are satisfied, therefore, the trial court in this case was entitled to review admissions of a defendant in the probation report of his prior conviction.

                plea form executed by the defendant in the previous conviction to determine the nature of the crime.  Charging documents considered in conjunction with a no contest plea reflected in a minute order were used in People v. Harrell (1989) 207 Cal.App.3d 1439, 1444, 255 Cal.Rptr. 750.  (See also People v. Colbert (1988) 198 Cal.App.3d 924, 927, 244 Cal.Rptr. 98.)   Similarly, a complaint and Tahl 7 admissions were considered in People v. Smith (1988) 206 Cal.App.3d 340, 345, 253 Cal.Rptr. 522.   In People v. Batista (1988) 201 Cal.App.3d 1288, 1293, 248 Cal.Rptr. 46 the court utilized a court reporter's transcript reflecting the defendant's guilty plea together with the information.  In People v. Johnson (1989) 208 Cal.App.3d 19, 25, 256 Cal.Rptr. 16 the court considered an information, abstract of judgment indicating a plea of guilty, and section 1203.01 statement of views signed by the judge and prosecutor which detailed the residential character of the burglary
                

II

When the sufficiency of the evidence is challenged on appeal, the court must review the entire record in the light most...