P. v. Brown

Filed 9/27/06 P. v. Brown CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Ronald E. Brown appeals a judgment entered upon a jury verdict finding him guilty of uttering or attempting to utter a forged check (Pen. Code,[1] §§ 470, subd. (d), 476) and second degree burglary (§ 460, subd. (b)). He contends on appeal that the trial court improperly found true various prior conviction allegations. We affirm.

I. BACKGROUND

On May 28, 2004, defendant tried to cash a forged check at a Wells Fargo office. In connection with this incident, he was charged with and convicted of second degree burglary (§ 460, subd. (b) (count 1)) and passing or attempting to pass a forged check (§§ 470, subd. (d) (count 2), 476 (count 3)).

After the jury reached its verdict, the trial court found true several prior conviction allegations, including the following: prior 1, which alleged that defendant had been convicted of four prior felonies within the meaning of section 1203, subdivision (e)(4);[2] prior 2, which alleged that defendant had suffered a prior conviction of burglary (§ 459) within the meaning of section 1170.12, subdivision (c)(2);[3] prior 3, which alleged another conviction within the meaning of section 1170.12, subdivision (c)(2); and priors 5 and 8, which alleged defendant had failed to remain free of prison custody for five years between prior terms of imprisonment and the commission of a later offense within the meaning of section 667.5, subdivision (b), which provides for one-year sentence enhancements in qualifying cases. On the People’s motion, prior 2 was amended for sentencing purposes to reflect a “second strike” finding pursuant to section 1170.12, subdivision (c)(1), under which defendant’s sentencing would be doubled, and prior 3 was stricken.

The trial court found defendant ineligible for probation. The court imposed the aggravated prison term of three years, doubled pursuant to section 1170.12, on count 2. It imposed doubled three-year terms for counts 1 and 3, but stayed those sentences pursuant to section 654, and added two consecutive one-year enhancements for priors 5 and 8, for a total prison term of eight years.

II. DISCUSSION

Defendant contends the trial court considered inadmissible evidence in finding the prior conviction allegations true, and that the evidence does not support the conclusion he suffered the prior convictions.

A. Admissibility of CLETS Report

Defendant first challenges the admissibility of the records of his prior convictions and prison terms.

At the hearing on the priors, the prosecution introduced defendant’s “rap sheet,” a report produced through the California Law Enforcement Telecommunications System (CLETS). (See Gov. Code, § 15150 et seq.) Louanne Yearman, the criminal records supervisor and agency terminal coordinator for CLETS in the San Mateo County Sheriff’s Department, testified that CLETS is a secure system that police agencies use to communicate with each other. It includes information that law enforcement agencies need to track, such as criminal histories, stolen vehicles, and missing persons. Information about people’s criminal histories, including identifying information such as names and dates of birth, is gathered by the arresting agencies, which send the information to the Department of Justice, along with the suspects’ fingerprints. The fingerprints are used to verify information in the criminal histories before it is included in the rap sheets that are generated as part of the CLETS system. The information is sent to the Department of Justice as close as possible to the dates of the relevant events.

Our Supreme Court in People v. Martinez (2000) 22 Cal.4th 106, 134, allowed the use of CLETS records to prove prior convictions, concluding the trial court there had not abused its discretion in finding the CLETS printout fell within the official records exception to the hearsay rule. That exception allows admission of records if (a) the record is made by and within the scope of a public employee’s duty; (b) it is made at or near the time of the act, condition, or event; and (c) the sources of information and method and time of preparation indicate the record’s truthfulness. (Id. at pp. 119-120; Evid. Code, § 1280.) In ruling the trial court could properly conclude the CLETS printout was reliable, the court noted that a paralegal for the district attorney had testified about how the information in the system was compiled and retrieved. (Martinez, at pp. 120-121, 129.) The court also pointed out various statutes that impose upon law enforcement agencies reporting and recording duties, and noted that Evidence Code section 664 provides a presumption that an official duty has been regularly performed. (Martinez, at pp. 121-125, 129-130.)

Defendant argues the rule of Martinez is inapplicable because the reliability of the CLETS record here was in doubt. He relies for this contention on the fact that his rap sheet contained an entry reflecting a conviction of “Demarcus Michael Brown” in a 1993 case, a name that was not one of defendant’s listed aliases. The prior conviction allegation based on this conviction was stricken at the request of the prosecutor, who told the court he could not prove whether or not defendant was the person who had suffered the conviction, and the allegations were not included in defendant’s sentencing. Defendant contends the apparently erroneous entry indicates the entire document is unreliable and hence inadmissible to prove any of his prior convictions.

We reject this contention. The record contains evidence to support the conclusion that the CLETS report was made in the course of official duties, that the information was entered into the system soon after the relevant events, and that the methods of entry were such as to indicate the truthfulness of the report. The fact that a single entry may have been inaccurate does not render the entire report, which is based on information entered over a period of 17 years,[4] unreliable for purposes of Evidence Code section 1280, or indicate that public officials failed to perform their duties according to official standards. (Cf. Shea v. Department of Motor Vehicles (1998) 62 Cal.App.4th 1057, 1059-1060 [report indicating result of alcohol test was not carried out within scope of duty of public employees because it was improperly carried out by apparently unsupervised trainees, who made false representations about their qualifications under penalty of perjury].) The trial court could properly admit the CLETS report as an official record.

Defendant also contends the admission of the CLETS report violated his federal constitutional right to confrontation under the United States Supreme Court’s decision in Crawford v. Washington (2004) 541 U.S. 36. We first note that defendant waived the issue by failing to object on this ground at trial. (See People v. Rowland (1992) 4 Cal.4th 238, 265, fn. 4.) In any case, defendant’s contention is without merit. The court in People v. Taulton (2005) 129 Cal.App.4th 1218, 1222, considered whether prison and jail records submitted pursuant to section 969b[5] were “testimonial” and hence subject to the rule of Crawford, which “holds that ‘testimonial statements’ may not be admitted unless the defendant had an opportunity to cross-examine the person whose hearsay testimony is sought to be introduced.” The court concluded that although the section 969b records might ultimately be used in criminal proceedings, they were not testimonial and fell outside the scope of Crawford because they were “prepared to document acts and events relating to convictions and imprisonments,” and not for the purpose of providing evidence in a criminal trial or for determining whether criminal charges should issue. (Taulton, at p. 1225.) The record here similarly shows that the purpose of the CLETS records was not to provide evidence to be used at trial but to allow law enforcement officers to track necessary information and communicate with each other. We agree with Taulton‘s reasoning and result, and conclude the CLETS records do not fall within the rule of Crawford.

B. Parole Officer’s Testimony

Edgar Zuniga, a parole agent for the California Department of Corrections and Rehabilitation, testified that he had supervised defendant on parole; that in connection with supervising defendant, he had seen the abstract of judgment for attempted burglary in one of the cases at issue in the trial on the priors;[6] and that when he supervised defendant, he saw other documentation of defendant’s criminal history.

Defendant contends this testimony was based on inadmissible hearsay and that his counsel was ineffective in having failed to object to it. To prevail on an ineffective-assistance claim, a defendant must establish deficient performance by counsel and that the inadequate performance prejudiced his case. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) Defendant has not met that standard here. Zuniga’s testimony established defendant’s identity as the person who was supervised as a result of the conviction in one of the prior cases at issue. Zuniga’s testimony was based on his personal recollection of defendant, not on hearsay. The trial court properly admitted the evidence, and defendant’s counsel did not render ineffective assistance in failing to object to it.

C. Sufficiency of the Evidence of the Priors

Defendant contends the evidence is insufficient to prove he was the person who suffered the prior convictions and prison terms. According to defendant, the CLETS record is not substantial evidence, because the facts necessary to show it was trustworthy were not established beyond a reasonable doubt. (See Evid. Code, §§ 607, 664.) We review the trial court’s determination for substantial evidence. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)

The evidence supports the trial court’s findings. The CLETS record, which we have already determined was admissible, and the testimony of Zuniga adequately identify defendant as the person who received the convictions and prison terms at issue.

Finally, defendant argues that he was deprived of due process by the use of Evidence Code section 664’s presumption that an official duty--in this case, entering information correctly into the CLETS system--has been regularly performed. According to defendant, such a presumption impermissibly relieves the state of the burden of persuasion on an element of the offense. Not so. It is true that mandatory presumptions may violate the due process clause if they relieve the state of the burden of persuasion. (See Francis v. Franklin (1985) 471 U.S. 307, 314.) Here, the presumption was rebuttable (see Evid. Code, §§ 630, 664), and the prosecution introduced evidence of how the information in the CLETS report was compiled and retrieved (see People v. Tenner (1993) 6 Cal.4th 559, 566-567 [no due process violation in relying on abstract of judgment and commitment form to prove prior prison term based on official duty presumption because presumption was not mandatory and defendant could present evidence raising doubt about whether he completed term]). The use of the CLETS records did not deprive defendant of his right to due process.

III. DISPOSITION

The judgment is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

REARDON, Acting P. J.

___________________________

SEPULVEDA, J.

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[1] All undesignated statutory references are to the Penal Code.

[2] Section 1203, subdivision (e)(4) provides that probation should ordinarily not be granted to a person who has twice been previously convicted of a felony.

[3] Section 1170.12, subdivision (c)(2), part of the three strikes law, provides for an indeterminate term of life imprisonment for the current felony offense if a defendant has two or more serious or violent felony convictions.

[4] The earliest entry in defendant’s rap sheet reflects charges made in 1988. The most recent entry is dated 2005.

[5] Section 969b allows the use of “records or copies of records of any state penitentiary, reformatory, county jail or city jail, or federal penitentiary in which [a defendant] has been imprisoned” as evidence that the defendant has been tried or convicted of a crime and has served a term of imprisonment.

[6] The abstract of judgment related to a conviction that provided a basis for both a finding under section 1203, subdivision (e)(4) and a finding under section 667.5, subdivision (b).