People v. Scott

• Decision Date: 21 December 2000
• Citation: 85 Cal. App. 4th 905,102 Cal.Rptr.2d 622
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. GEORGE SCOTT, Defendant and Appellant. B131005 Filed

102 Cal.Rptr.2d 622 (Cal.App. 2 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. GEORGE SCOTT, Defendant and Appellant.

B131005

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Filed 12/21/00

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed in part, reversed in part, and remanded with directions.

(Super. Ct. Nos. BA173389& BA177836)

Sharon L. Rhodes, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and William V. Ballough, Deputy Attorney General, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

It is settled that the doctrine of double jeopardy will not bar the retrial of a prior conviction allegation after reversal on the ground of evidentiary insufficiency. (People v. Monge (1997) 16 Cal.4th 826, 843, 844-845 (Monge).) The principal issue which we consider in this appeal is whether such a retrial nonetheless may be barred on the ground of res judicata, collateral estoppel or law of the case.

The appellant, George Scott, appeals from the judgment entered following his convictions by jury of second degree burglary (Pen. Code, 459),¹ second degree robbery ( 211), and assault by means likely to produce great bodily injury ( 245, subd. (a)(1)), each with personal infliction of great bodily injury ( 12022.7, subd. (a)), and with findings that he suffered four prior felony convictions ( 667, subd. (d)), and three prior serious felony convictions ( 667, subd. (a)(1)). He was sentenced to prison for 43 years to life.

As we explain, when a true finding as to a prior conviction allegation is reversed on appeal due to evidentiary insufficiency, People v. Morton (1953) 41 Cal.2d 536 (Morton), People v. Rice (1988) 200 Cal.App.3d 647 (Rice) and section 1262 compel the conclusion that the case must be remanded for a retrial of that allegation. Neither res judicata nor collateral estoppel preclude such a retrial. Similarly, the doctrine of the law of the case will be ineffective to prevent a true finding upon retrial, provided that the People, at such retrial, present additional evidence beyond that previously found to be insufficient.

We are aware that a recent decision of another Court of Appeal (see People v. Mitchell (2000) 81 Cal.App.4th 132 (hereafter, Mitchell III)) has held that fundamental fairness requires that the doctrines of res judicata and law of the case preclude a retrial when true findings as to prior conviction allegations are reversed on appeal due to insufficiency of the evidence. However, that case arose in a very specific and unusual factual and procedural context and is entirely distinguishable from the more common circumstances presented by the facts of this case. Moreover, such distinction aside, we believe that Mitchell III was wrongly decided and we respectfully decline to follow it.

Mitchell III also failed to consider or discuss either Morton, Rice, section 1262 or the impact of such authorities on the issues raised. In addition, its "res judicata and collateral estoppel" analysis is not supported by relevant authority and its application of the doctrine of "law of the case" constitutes and unwarranted extension of the conclusion articulated by the Supreme Court in Monge and, in our view, inappropriately relies upon principles applicable only in civil cases.

Thus, while we conclude that the People failed to present sufficient evidence to support a true finding that appellant's alleged prior 1981 conviction was for a "serious felony," we nonetheless will remand the matter for a retrial at which the People may, if they can, present additional evidence to support their allegations. Contrary to the views expressed in Mitchell III, we see no basis for any requirement that such additional evidence be newly discovered.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which as to the substantive offenses is undisputed, established that, on July 17, 1998, appellant committed the charged offenses in Los Angeles County by entering a church restroom and, once inside, feloniously assaulting, and robbing Cristina Sanchez. Appellant presented an alibi defense which the jury rejected. Appellant raises no issue on appeal with respect to his convictions on the substantive offenses.

CONTENTIONS

On appeal, appellant raises two contentions with respect to a prior felony conviction with which he was charged and as to which the trial court made true findings. Appellant contends "the true finding as to the strike allegation and the prior serious felony enhancement allegation for the 1981 conviction must be reversed as there was insufficient evidence that the conviction qualified as either a strike or a prior serious felony." In his supplemental brief, appellant contends "retrial as to the truth of the strike allegation and the prior serious felony enhancement allegation for the 1981 conviction is barred by the doctrines of law of the case and res judicata and would violate appellant's state and federal constitutional rights to due process." We agree with appellant's first contention, but reject his second.

DISCUSSION

1. The Evidentiary Sufficiency Issue As To The 1981 Robbery Conviction

a. Factual Background

The second amended information alleged, in pertinent part, that appellant committed assault by means likely to produce great bodily injury ( 245, subd. (a)(1); count three), second degree robbery ( 211; count four), and second degree commercial burglary ( 459; count five).² It also alleged that appellant had suffered four prior serious felony convictions, for purposes of the Three Strikes law and section 667, subdivision (a)(1). One of those prior convictions, and the one at issue here, was for a December 17, 1981 robbery conviction (No. A371596).³

Appellant's trial on the prior conviction allegations was divided into two phases: a jury trial on pertinent nonidentity issues, followed by a court trial on the identity issue. During the jury trial phase, the sole items of evidence proffered by the People were exhibit Nos. 17 and 18. Exhibit No. 17 consisted of a "prison packet," that is, certified copies of documents from the California Department of Corrections (CDC) which that agency had provided in compliance with section 969b.⁴ This exhibit pertained to prior convictions other than the prior conviction at issue here, but was offered as relevant to the identification of appellant with respect to the 1981 robbery conviction.

People's exhibit No. 18 relates directly to the prior conviction at issue and consists of two documents. The first is a copy of a letter dated August 28, 1998, from the State of California, Youth and Adult Correctional Agency, Department of the Youth Authority, Master Files. It is addressed to the Los Angeles County District Attorney's Office, and reflects that it pertains to a George Scott, superior court number A371596.⁵

The second document is a certified copy of a form which reflects that a George Scott was an 18-year-old Black male whose birthdate was April 24, 1963. It also reflects that on December 17, 1981, Judge D. M. Rothman, in Los Angeles County Superior Court, "commit[ted]" Scott in case No. A371596 for the offense of "211PC Robbery w/12022.5PC Use of a firearm." There were three other entries on the form which provide no information as to the substance of appellant's conviction.⁶

At trial, the People moved both of these exhibits into evidence and appellant, after some discussion, finally pressed an objection only to exhibit No. 18 which was overruled.⁷ The exhibits were then received in evidence. The jury found true the nonidentity allegations as to all four prior convictions.⁸

At the March 25, 1999 court trial on the identity issue, the People submitted the matter based on People's exhibit Nos. 17 and 18, including the photograph of George Scott in exhibit No. 17. Appellant presented no defense evidence, but urged "the court to find that the package is inadequate particularly as I think it is number 18, the letter from C.Y.A. I think that that is clearly inadequate." The court rejected this argument and found true the identity allegation as to all four prior convictions. Appellant was thereafter sentenced to prison for 43 years to life.⁹

b. The Evidence Presented By The People Was Not Sufficient To Prove That The 1981 Conviction Constituted A "Serious Felony"

A finding that appellant had suffered a prior felony conviction ( 667, subd. (d)), and a prior serious felony conviction ( 667, subd. (a)(1)), could only be sustained if the prior conviction at issue was for a "serious felony."¹⁰ In this case, that would mean: (1) "any felony in which the defendant personally uses a firearm" ( 1192.7, subd. (c)(8)); (2) robbery ( 1192.7, subd. (c)(19)); and/or (3) "any felony in which the defendant personally used a dangerous or deadly weapon" ( 1192.7, subd. (c)(23)).

In People v. Martinez (2000) 22 Cal.4th 106 (Martinez), our Supreme Court concluded that items other than the "record of conviction," and certified prison records admissible under section 969b, are admissible to establish issues pertaining to a prior conviction, as long as such other evidence does not pertain to the substance of a prior conviction. For example, such other evidence is admissible to establish such matters as the fact of the prior conviction (i.e., that someone suffered it) and the identity of the defendant as the person who suffered it. (Martinez, supra, 22 Cal.4th at pp. 113-118.)

In People v. Guerrero (1988) 44 Cal.3d 343 (Guerrero), the Supreme Court previously had established evidentiary limitations on the "permissible scope of proof to establish the substance...