People v. Goodner, H005434

• Decision Date: 20 December 1990
• Docket Number: No. H005434,H005434
• Citation: 226 Cal.App.3d 609,276 Cal.Rptr. 542
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Gregory GOODNER, Defendant and Appellant.

Page 542

276 Cal.Rptr. 542

226 Cal.App.3d 609

The PEOPLE, Plaintiff and Appellant, v. Gregory GOODNER, Defendant and Appellant.

No. H005434.

Court of Appeal, Sixth District, California.

Dec. 20, 1990.

As Modified Jan. 18, 1991.

Review Denied March 13, 1991.

Rita L. Swenor, Swenor & Crooks, Sonoma, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Morris Beatus, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.

COTTLE, Justice.

Defendant Gregory Goodner was charged by information with one count of robbery (Pen.Code, §§ 211-212.5, subd. (b)). The information alleged he had previously been convicted of four separate serious felonies involving burglary of an inhabited dwelling (Pen.Code, §§ 667, 1192.7) and had served three separate prior prison terms (Pen.Code, § 667.5, subd. (b)). Defendant moved to strike three of the four prior serious felony allegations; the court granted the motion to strike as to two of those three allegations while retaining use of one of the underlying convictions as a Penal Code section 667.5, subdivision (b) prison prior. Defendant then pleaded guilty to the robbery, admitted the two remaining unstricken serious felony allegations, and admitted one of the three prior prison term allegations. Defendant was sentenced to 16 years in state prison. The People appeal challenging the correctness of the trial court's legal determination striking from the information the allegations that two of defendant's prior felony convictions were "serious felonies" within the meaning of Penal Code section 667. In addition to responding to the People's appeal, defendant Goodner appeals contending the trial court erred in failing to strike the serious felony allegation he had unsuccessfully challenged below.

FACTS

On March 21, 1988, defendant entered a branch of Bell Savings in San Jose. He approached a teller with a newspaper in his hand and stated this was "a robbery" and that he did not want "a dye pack." The teller gave defendant the ones, fives, and tens in her drawer; the defendant put the money in his newspaper and ran. The teller later identified defendant from a photographic lineup.

I THE PEOPLE'S APPEAL

"An order striking a prior is appealable under [Penal Code] section 1238, subdivision (a)(1) or (a)(6). [Citation.]" (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1123, 231 Cal.Rptr. 387.) ¹ Our consideration of the People's appeal in no way implicates defendant's constitutional guarantee against double jeopardy. " 'The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.' " (Stone v. Superior Court (1982) 31 Cal.3d 503, 515, 183 Cal.Rptr. 647, 646 P.2d 809, emphasis added.) This rule of constitutional law applies "in the context of a trial of a prior conviction when insufficient evidence is introduced to sustain the allegation." (People v. Hockersmith (1990) 217 Cal.App.3d 968, 972, 266 Cal.Rptr. 380, emphasis added.) Here, however the People appeal the trial court's order granting defendant's pretrial motion to "strike" his priors as "non-serious felonies" (capitalization omitted); after the law and motion ruling in which the court granted defendant's motion to strike prior No. 69112 and denied defendant's motion to strike prior No. 76965, the court ordered the matter to "trail" in the same department "for settlement and/or set for trial." At the next court date, the court agreed to reconsider the pretrial motion to strike prior No. 76965 and granted the motion. The court then asked defense counsel to speak with defendant regarding possible settlement of the case prior to trial. Because both rulings on the motion to strike were made before jeopardy attached, they are not subject to the former jeopardy doctrine. (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 779, fn. 8, 200 Cal.Rptr. 916 At the time of defendant's convictions in Santa Clara County for prior Nos. 69112 and 76965 [hereinafter "69112" and "76965"], second degree burglary, to which he pleaded guilty in each case, included both residential daytime burglary and non-residential burglaries.

                677 P.2d 1206;  People v. Jordan (1978) 86 Cal.App.3d 529, 533, 150 Cal.Rptr. 334.)   We therefore address the People's contentions on their merits
                

At the hearing on defendant's motion to strike 69112, the only document before the court which described the second degree burglary conviction sufficiently to classify it as a serious felony under Penal Code sections 667 and 1192.7, subdivision (c)(18) ("burglary of an inhabited dwelling house ... or inhabited portion of any other building") was the probation report filed in 69112. In raising a hearsay objection to the use of the probation report, Goodner claimed a violation of his right to confront and cross-examine witnesses. The court below determined that, as a matter of law, it could not consider the probation report to determine the residential nature of the prior burglary.

At the hearing on defendant's motion to strike 76965, the trial court factually determined that 76965 involved a residential burglary. The court found that the preliminary examination transcript made this fact "clear" and without question. However, the court felt compelled by People v. Vasquez (1988) 204 Cal.App.3d 1531, 252 Cal.Rptr. 331, a case since depublished, to strike the prior because the record failed to show an express acknowledgement from defendant's own "lips in some fashion" that the burglarized structure was a residential dwelling.

On appeal the People contend the court erred in refusing to consider the probation report in 69112 and in refusing to rely upon the preliminary examination transcript in 76965. We agree.

In light of the Supreme Court's ruling in People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150, a trial court may now look behind the bare judgment of conviction to determine, from the entire record, whether the conviction involved the burglary of an inhabited residence. ² Since Guerrero, courts have found a variety of items from the file of a prior conviction proper for consideration.

In People v. Garcia (1989) 216 Cal.App.3d 233, 264 Cal.Rptr. 662, the trial court considered portions of the probation officer's report of a prior conviction to determine whether the prior fit within the provisions of Penal Code section 667. The Fourth District Court of Appeal rejected defendant's contention that "the probation officer's report was inadmissible hearsay and violated his right to confront witnesses" (id., at p. 236, 264 Cal.Rptr. 662), holding that the trial court "was entitled to review admissions of a defendant in the probation report of his prior conviction." (Id., 216 Cal.App.3d at p. 237, 264 Cal.Rptr. 662.)

"The major policy underlying the hearsay rule is the need for cross-examination to test the credibility of the declarant or witness." (People v. Castellanos (1990) 219 Cal.App.3d 1163, 1173, 269 Cal.Rptr. 93.) Like the court in Garcia, "[w]e recognize a probation report often contains hearsay matter. Indeed section 1203 contemplates and allows hearsay information within probation reports. [Citation.] [However,] [i]f a defendant contends the hearsay information is unfair or untrue[,] he is given Recently, in People v. Williams, supra, the First District Court of Appeal agreed with the court in Garcia that it is proper to use a defendant's statements contained in a probation report to determine the nature of a prior conviction under Evidence Code section 1220, the party admission exception to the hearsay rule. The court in Williams noted that many post-Guerrero cases "implicitly follow this exception to the hearsay rule in sanctioning a sentencing court's consideration of documents which reflect a defendant's explicit or implicit concession as to the nature of a prior conviction" (222 Cal.App.3d at p. 916, 272 Cal.Rptr. 212), and that the defendant in Garcia, unlike the defendant in Williams, was "afforded adequate protection from the dangers of out-of-court statements." (Id. at p. 918, 272 Cal.Rptr. 212.)

                an opportunity to refute it.  [Citation.]"  (People v. Garcia, supra, 216 Cal.App.3d at p. 237, 264 Cal.Rptr. 662.)   The court in Garcia "did not see defendant's admission as a problem, since the defendant was afforded an ample opportunity, both at the prior proceeding and the sentencing hearing, to challenge or refute the statement attributed to him.  [Citation.]"  (People v. Williams (1990) 222 Cal.App.3d 911, 917, 272 Cal.Rptr. 212.)
                

The court in People v. Castellanos, supra, 219 Cal.App.3d 1163, 269 Cal.Rptr. 93 held that preliminary hearing testimony could be considered to determine the nature of a prior burglary conviction. The court reasoned that "[b]ecause the preliminary hearing transcript testimony and other relevant court documents, albeit hearsay, are not being offered against the defendant in the traditional sense, but are merely being offered for the neutral inquiry as to the nature of the earlier offense, i.e., to explain the defendant's conduct which comprised the crime he admitted to have suffered in the earlier proceeding, they are admissible as exceptions to the hearsay rule to explain his admissions. [Citation.]" (Id., at p. 1174, 269 Cal.Rptr. 93.) Perhaps equally important, "[t]he main reasons for excluding hearsay evidence are: '(a) The statements are not made under oath; (b) the adverse party has no opportunity to cross-examine the person who made them; and (c) the jury cannot observe his demeanor while making them.' [Citations.]" (People v. Williams, supra, 222 Cal.App.3d at p. 916, 272 Cal.Rptr. 212.) Given that statements made during a preliminary...