People v. Matthews

• Decision Date: 15 April 1991
• Docket Number: No. A046766,A046766
• Citation: 229 Cal.App.3d 930,280 Cal.Rptr. 134
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Terrance Lewis MATTHEWS, Defendant and Appellant.

Page 134

280 Cal.Rptr. 134

229 Cal.App.3d 930

PEOPLE of the State of California, Plaintiff and Respondent, v. Terrance Lewis MATTHEWS, Defendant and Appellant.

No. A046766.

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

April 15, 1991.

Certified for Partial Publication ^*.

As Modified on Denial of Rehearing

May 15, 1991.

John K. Van de Kamp and Daniel E. Lundgren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus and Herbert F. Wilkinson, Supervising Deputy Attys. Gen., Matthew P. Boyle and Ann Grogan Deputy Attys. Gen., San Francisco, for plaintiff/respondent.

Terrance L. Matthews, in pro. per. Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, Peter R. Silten, Chief Asst. State Public Defender and Louis Marinus Wijsen Deputy State Public Defender, San Francisco, for defendant/appellant.

NEWSOM, Acting Presiding Justice.

Appellant was convicted of attempted robbery (Pen.Code, §§ 212.5, subd. (b), 664), ¹ which was committed at the Empire Savings and Loan office (hereafter the bank) located at 1967 Market Street in San Francisco. At approximately 1 p.m., appellant entered the bank, approached teller Katy Chue with his hand in his coat pocket suggesting possession of a gun, and demanded money. Chue exclaimed, "Oh no. Not again" before retreating from her station to hide under a counter.

John Finn, who was then working at the next teller's window, asked appellant if he could help. Appellant replied: "Come on, give me the money." Fearing appellant might shoot, Finn stepped back behind a partition between the tellers' windows and told appellant he did not have any keys.

Charles Lamb, bank manager, was summoned to the scene. In response to Lamb's query, "Can I help you, sir?", appellant said, "I want the money," a demand he repeated several times, coupled with a threat to shoot Lamb. When Lamb also denied having keys, appellant finally ceased his demands for money and left the bank. While Lamb contacted the police, Finn pursued appellant briefly before losing sight of him.

San Francisco Police Officers Vellone and Ludlow received a report of an attempted robbery while they were on patrol nearby in an unmarked car. They observed appellant attempting to enter an apartment building shortly after hearing the police broadcast which included a description of the bank robber. Appellant matched the description and was apprehended after a scuffle which resulted in damage or loss to several of Officer Vellone's teeth. After being advised of his Miranda rights at the police station, appellant denied being near the bank and told officers that his name was Charles Murphy.

Appellant testified that he entered the bank to obtain money, but denied simulating possession of a gun or threatening bank employees. After his requests for money were denied, he left the bank. He proceeded to his sister's apartment complex, and was ringing the bell when two men approached. His response was to run until he saw his pursuers draw guns, whereupon he stopped and was frisked. When one of the officers placed him in a painful choke-hold, he reared his head back, striking the officer's face. He was then thrown to the ground and beaten.

The arresting officers testified that upon contacting appellant, they identified themselves as police officers. Appellant was impeached with three prior convictions.

Appellant was also charged with commission of five prior serious felonies (§§ 667 and 1192.7) and conviction of five felonies for which he had served prison terms (§ 667.5, subd. (b)). To prove a prior conviction for robbery dated April 24, 1984, the prosecution submitted the following documents: 1) a certified copy of a San Francisco Superior Court record which indicates that "Carl Tyrone Matthews" was convicted of robbery in case number 112983 on April 24, 1984, with sentence imposed on May 22, 1984 (exh. 14); 2) a computer printout labeled "San Francisco Police Department Criminal History Record" for "Terry Matthews," showing an arrest for robbery on January 25, 1984, and sentencing for that offense on May 22, 1984; 3) an unlabeled computer printout with the name "Terry Matthews," among other aliases, listed at the top; and 4) a fingerprint card indicating an arrest of Terry Matthews on January 25, 1984. Over appellant's hearsay objection, exhibit 14 was properly admitted into evidence as an official record of the court. Exhibits 16 and 17 were admitted over hearsay and lack of foundation objections as business records, and are in dispute in this appeal. ²

To satisfy the foundational requirements for admission of exhibits 16 and 17, the state and local "rap sheets," respectively, as business records (Evid.Code, § 1271), the prosecution adduced testimony of John White, a fingerprint technician and custodian of records for the San Francisco Police Department Identification Bureau. White testified that he maintained custody of a "criminal jacket" which included the local and state rap sheets marked exhibits 16 and 17. He further testified: "Q. Now, is the information in the I.D. Jacket something that is made in the regular course of business of the identification bureau, sir?

"A. Yes, it is.

"Q. And is that ... an institution or is that a business of which you are a custodian of records in your official capacity?

"A. Yes.

"Q. Are the writings entered in the records contained in the I.D. Jacket, are they entered on the paper soon in time to the actual condition or event they are meant to memorialize or record?

"A. Yes they are.

"Q. And are you familiar, sir, with the manner in which information is gathered?

"A. Yes.

"Q. For the purpose of entering it and keeping it and in the jacket of a particular person, are you familiar with the mode of preparation?

"A. Yes."

The local and state rap sheets were then admitted as business records, followed by White's opinion that the notation "01/25/84 CAPDSAN FRANCISCO 326095, 01:211 PC-ROBBERY [p] 05-22-84 CASCSAN FRANCISCO CO 112983 01:211 PC-ROBBERY [p] *DISPO: CONVICTED-PROBATION" referred to an arrest date of January 25, 1984, in case number 112983, which matched the case number on exhibit 14, showing a conviction of Carl Tyrone Matthews for robbery on April 24, 1984.

The prosecutor also referred White to a fingerprint card, marked as exhibit 18, which White identified as "an original ten print card of [appellant] reflecting certain dates upon which he was processed in this building." The card had the date Jan/25/1984 stamped on one of the fingerprints, which White stated was an arrest date corresponding to the date noted for an arrest for robbery of Terry Matthews on the state rap sheet. White made no fingerprint comparision between this card and one bearing appellant's fingerprints taken that day in court.

The court found that appellant had been twice convicted of a "serious" felony (robbery), and that appellant had been previously convicted of a felony (sale of narcotics) that resulted in a prior prison term. Appellant was sentenced to the upper term of three years for the attempted robbery, to consecutive five-year terms for each of the two serious felonies, and to an additional consecutive one-year term for the narcotics conviction that had resulted in a prior prison term, for a total of fourteen years.

Following our Wende ³ review, we have raised the issue of the admissibility of the state and local rap sheets to prove appellant's 1984 robbery conviction, which resulted in a five-year enhancement to his sentence. The rap sheets were admitted by the trial court under the business records exception to the hearsay rule. We find other considerations also pertinent in determining the admissibility of the rap sheets to prove the prior conviction.

Our high court has declared that the trier of fact may "look to the entire record of the conviction to determine the substance of a prior foreign conviction." (People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150; see also People v. Goodner (1990) 226 Cal.App.3d 609, 614, 276 Cal.Rptr. 542; People v. Garcia (1989) 216 Cal.App.3d 233, 236, 264 Cal.Rptr. 662.) "[T]he 'entire record of conviction' includes all relevant documents in the court file of the prior conviction." (People v. Castellanos (1990) 219 Cal.App.3d 1163, 1172, 269 Cal.Rptr. 93.) The court in Guerrero did not resolve which items are included within the entire "record of conviction ... and for what purpose or whether on the peculiar facts of an individual case the application of the rule set forth herein might violate the constitutional rights of a criminal defendant." (Guerrero, supra, 44 Cal.3d at p. 356, fn. 1, 243 Cal.Rptr. 688, 748 P.2d 1150; People v. Johnson (1989) 208 Cal.App.3d 19, 27, 256 Cal.Rptr. 16; People v. Smith (1988) 206 Cal.App.3d 340, 343, 253 Cal.Rptr. 522.) But, Guerrero clearly established the rule that the People are precluded from relitigating the circumstances of a past offense " 'by introducing evidence outside the record. [Citation.]' (Id. at p. 344, fn. 6, 243 Cal.Rptr. 688, 748 P.2d 1150; People v. Castellanos, supra, 219 Cal.App.3d 1163, 1171, 269 Cal.Rptr. 93.) "The proof of the prior conviction is limited to 'the entire record of the conviction.' [Citation.]" (People v. Guzman (1990) 225 Cal.App.3d 1302, 1310, 275 Cal.Rptr. 856.)

The state and local rap sheets used to prove appellant's 1984 robbery conviction were not part of the record of conviction; those documents were merely used by the prison system for administrative or investigative purposes. (People v. Rhoden (1989) 216 Cal.App.3d 1242, 1257, 265 Cal.Rptr. 355.) Under Guerrero, exhibits 16 and 17 were not properly used to prove the details of appellant's prior convictions. (Ibid.)

Section 969b ⁴ specifically authorizes proof of the fact that the defendant suffered a prior conviction by evidence of certified prison records; it provides: "For the purpose of...