People v. Reed

• Citation: 13 Cal.4th 217,52 Cal.Rptr.2d 106,914 P.2d 184
• Decision Date: 25 April 1996
• Docket Number: No. S046378,S046378
• Court: California Supreme Court
• Parties: , 914 P.2d 184, 96 Cal. Daily Op. Serv. 2894, 96 Daily Journal D.A.R. 4801 The PEOPLE, Plaintiff and Respondent, v. James REED, Defendant and Appellant

Page 106

52 Cal.Rptr.2d 106

13 Cal.4th 217, 914 P.2d 184, 96 Cal. Daily Op. Serv. 2894,

96 Daily Journal D.A.R. 4801

The PEOPLE, Plaintiff and Respondent, v. James REED, Defendant and Appellant.

No. S046378.

April 25, 1996.

Cliff Gardner (Court-appointed), Delaine Renard and Gardner & Derham, San Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Donna B. Chew, Joan Killeen and Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, Justice.

This case concerns the admissibility of hearsay evidence to prove that a criminal defendant's prior conviction was for a "serious felony" within the meaning of Penal Code sections 667, subdivision (a), and 1192.7, subdivision (c). Over defendant's hearsay objection, the prosecution introduced two pieces of evidence from the record of defendant's prior assault conviction to show that in the prior crime defendant personally used a dangerous or deadly weapon (Pen.Code, § 1192.7, subd.

[914 P.2d 186] (c)(23)): portions of the preliminary hearing transcript and a short excerpt from the probation officer's report. We conclude the preliminary hearing transcript excerpts were not inadmissible hearsay because they came within the former-testimony exception to the hearsay rule (Evid.Code, § 1291). The probation report fragment, however, was inadmissible because it contains hearsay that has not been shown to be within any exception to the hearsay rule (Evid.Code, § 1200).

FACTS

Defendant was charged with several crimes, including second degree robbery, a serious felony. (Pen.Code, §§ 211, 212.5, 1192.7, subd. (c)(19).) ¹ The information further alleged he had been convicted of two prior serious felonies, one of them a 1980 San Francisco conviction for assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). In the first phase of a bifurcated jury trial, defendant was convicted of the current robbery, among other offenses.

In the second phase of trial, the prosecution introduced documentary evidence of defendant's 1980 conviction, by plea of guilty, for violation of section 245, subdivision (a)(1), as well as the testimony of a fingerprint expert to show defendant was the person who, under the name Gregory McClanahan, suffered that conviction. In order to show defendant personally used a dangerous or deadly weapon in the prior assault, making it a serious felony under section 1192.7, subdivision (c)(23), the prosecution introduced two documents reflecting circumstances of the prior crime: part of the certified preliminary hearing transcript and a five-line excerpt from the probation officer's report. Defendant unsuccessfully objected to both documents on grounds of hearsay and lack of foundation.

The preliminary hearing transcript excerpts contained parts of the testimony of the assault victim and his wife, who were shopkeepers. The victim, Mr. Martinez, testified he saw defendant put a bottle of cognac in a wicker basket. Defendant was carrying a wooden cane. When Martinez asked defendant to put the bottle back, defendant denied having taken it. Martinez pulled the bottle from the basket, and the two began arguing. Martinez testified: "[T]he next thing I remember is waking up in General Hospital with my head split open...." Martinez was struck on his forehead and nose. During the argument, and before Martinez was hit, a man who had earlier been in the store with defendant came back inside. Defendant's cane, broken, was introduced as an exhibit in the 1980 hearing.

Mrs. Martinez's testimony corroborated that of her husband as to defendant having a bottle in his basket and arguing with Mr. Martinez. The portion of Mrs. Martinez's testimony introduced at the current trial contains only an indirect identification of defendant as the assailant, in the form of her agreement with this leading question from defendant's attorney: "And so it would also be your testimony nobody in the store before this gentleman hit you--before Mr. McClanahan allegedly hit your husband on the head, nobody in the store threatened him with a bottle?"

The probation report excerpt read in its entirety as follows: "the defendant, Mr. McClanahan denied stealing the cognac, but, in fact, had the bottle in a wicker basket he was holding. Mr. Martinez then reportedly took the bottle from the basket, whereupon the defendant struck him on the head with a large heavy wooden cane, breaking the cane. Mr. Martinez was reportedly un-"

The jury found defendant was previously convicted of "assault with a deadly weapon with personal use thereof." The court imposed a five-year sentence enhancement for the prior assault under section 667, subdivision (a).

The Court of Appeal affirmed as to the section 667 enhancement for the prior assault. Relying on People v. Castellanos (1990) 219 Cal.App.3d 1163, 269 Cal.Rptr. 93, the court held the preliminary hearing transcript was admissible under a nonstatutory exception to the hearsay rule. The probation report excerpt, the court further held,

was [914 P.2d 187] not within any exception, but its admission could not have prejudiced defendant because its contents were consistent with those of the preliminary hearing transcript. For the reasons that follow, we affirm the judgment of the Court of Appeal.

DISCUSSION

Section 667, subdivision (a), provides for a five-year sentence enhancement for each prior serious felony conviction when a person is convicted of a new serious felony. A "serious felony" is one listed in section 1192.7, subdivision (c). (§ 667, subd. (a)(4).) Because not all the crimes listed in section 1192.7, subdivision (c), correspond to specific felonies defined by California law at the times of all prior convictions, this court has repeatedly faced questions as to the manner in which the trier of fact may determine whether a prior conviction was for a listed serious felony.

In People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, we interpreted certain paragraphs of section 1192.7 as referring "not to specific criminal offenses, but to the criminal conduct described therein, and applicable whenever the prosecution pleads and proves that conduct." (37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.) Although the defendant's prior conviction for second degree burglary did not on its face necessarily constitute burglary of an inhabited dwelling, so as to qualify as a serious felony (§ 1192.7, subd. (c)(18)), we upheld the finding of prior serious felony conviction because the defendant expressly admitted, in the current proceeding, that his prior conviction involved burglary of a residence. (37 Cal.3d at pp. 836-837, 210 Cal.Rptr. 623, 694 P.2d 736.) Because of the admission, Jackson did not require us to decide how the nature of a prior conviction might be proven.

In People v. Alfaro (1986) 42 Cal.3d 627, 629, 230 Cal.Rptr. 129, 724 P.2d 1154, the question before us was " 'what evidence may be considered in determining whether a prior felony conviction involved burglary of a residence.' " Following dictum in Jackson, we limited proof to the judgment itself: for those offenses that were not by definition within section 1192.7's list, we held the prior conviction constituted a serious felony only if the facts bringing it within section 1192.7 were established by collateral estoppel, i.e. were necessarily adjudicated elements of the prior charge. (42 Cal.3d at pp. 633-636, 230 Cal.Rptr. 129, 724 P.2d 1154.)

Alfaro 's restriction of proof to the judgment itself was soon abandoned in People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150. On reexamination of the question, we concluded the case law supported a broader rule: the trier of fact may look to the entire record of conviction to determine the substance of the prior conviction. (Id. at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150.) Such a rule, we further reasoned, was both fair and reasonable. By broadening the allowable proof beyond matters necessarily adjudicated in the prior judgment, we implemented the intent of the electorate in including, within section 1192.7, terms that referred to conduct rather than to a specific crime. The aspect of the announced rule restricting proof to the record of conviction was also fair: "it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial." (44 Cal.3d at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)

In Guerrero we declined to address any question regarding "what items in the record of conviction are admissible and for what purpose." (People v. Guerrero, supra, 44 Cal.3d at p. 356, fn. 1, 243 Cal.Rptr. 688, 748 P.2d 1150.) ² The present case requires us to resolve two such issues of admissibility.

The Preliminary Hearing Transcript Excerpts

At the threshold, we consider whether the preliminary hearing transcript excerpts were within the record of the prior conviction, as required for their admission under People v. Guerrero, supra, 44 Cal.3d at page 355, 243 Cal.Rptr. 688, 748 P.2d 1150. Neither Guerrero nor People v. Myers, supra, 5 Cal.4th 1193, 22 Cal.Rptr.2d 911, 858 P.2d 301, contains a definition of "record of conviction" or a discussion of what the term means in this context. Here, however, neither party argues the preliminary hearing transcript was outside the record, nor did defendant object on that basis below. We conclude the transcript was part of the record of the prior conviction, whether that term is used technically, as equivalent to the record on appeal (see People v. Abarca (1991) 233 Cal.App.3d 1347, 1350, 285 Cal.Rptr. 213), or more narrowly, as referring only to those record documents reliably reflecting the facts of the offense for which the defendant was...