P. v. Leon

Filed 8/21/07 P. v. Leon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. John Whiteside, Judge.

Geri Lynn Green, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Craig Christopher Leon was found in possession of 11.53 grams of heroin during a traffic stop of his truck. He was convicted of transportation and possession for sale and sentenced to the third strike term of 25 years to life. On appeal, he contends there is insufficient evidence of possession because his passenger could have placed the heroin in his vehicle without his knowledge. He also raises several challenges to the true findings on the two prior strike convictions, and argues the court abused its discretion when it denied his motion to dismiss one of the prior strike convictions. We will affirm.

STATEMENT OF THE CASE

On September 2, 2005, a first amended information was filed in the Superior Court of Stanislaus County charging appellant with count I, transportation of heroin (Health & Saf. Code,  11352, subd. (a)); and count II, possession of heroin for sale (Health & Saf. Code,  11351). It was further alleged appellant suffered two prior strike convictions (Pen. Code,^[1] 667, subds. (b)-(i), 1170.12), and served three prior prison terms ( 667.5, subd. (b)). Appellant pleaded not guilty and denied the allegations.

On January 31, 2006, appellant admitted the three prior prison term enhancements; thereafter, his jury trial began. On February 1, 2006, appellant was convicted of counts I and II, and the jury found he suffered the two prior strike convictions.

On March 24, 2006, the court denied appellants motion to dismiss his prior strike convictions, and sentenced him to 25 years to life for count I, stayed the sentence for count II pursuant to section 654, and ordered the prior prison term enhancements stricken in the interests of justice.^[2]

On April 4, 2006, appellant filed a timely notice of appeal.

FACTS

Around 11:30 a.m. on December 12, 2004, Modesto Police Officer Ron Johnson was on patrol when he approached the intersection of Third and J Streets. Johnson was traveling eastbound on Third Street and did not have a stop sign at the intersection. A pickup truck pulled in front of Johnson and almost hit his patrol car. Johnson testified that he noticed there were two people in the truck when it crossed in front of him. Johnson hit the brakes and avoided a collision, and immediately activated the patrol cars emergency lights to perform a traffic stop of the pickup truck. The pickup truck complied and pulled over.

Officer Johnson, who was by himself, walked to the drivers side of the truck and contacted the driver, appellant Craig Christopher Leon. James Melton was sitting in the right front passenger seat, about three and a half feet from appellant. The vehicle was a 2002 Chevrolet standard full-size pickup truck. Johnson checked the vehicles title and determined the truck was registered to appellant.

Officer Johnson advised appellant about the reason for the traffic stop and asked for his drivers license. Johnson also asked appellant to step out of the truck so he could perform a patdown search.^[3] Appellant left the drivers door open when he got out of the truck. Johnson directed appellant to face the vehicle near the open drivers door and place his hands on top of his head, and Johnson conducted the patdown search. Johnson stood directly behind appellant as he conducted the patdown search. Appellant did not say anything during the search.

Officer Johnson testified a backup officer arrived just as he asked appellant to step out of the truck. The officer was on the other side of the truck. Johnson testified Melton remained in the trucks front seat during the patdown search, and Johnson was able to see Melton [p]art of the time but not all of the time as he searched appellant.

Q And during the search your focus is on [appellant] as opposed to Mr. Melton.

A Well, no, thats not necessarily true. [] I mean, I try to train myself to keep my eyes on everything thats going on. When I have two people I am thinking about two people. Obviously I cant watch both, but Ill be back and forth looking at both parties.

Q But your primary attention was on [appellant] and not Mr. Melton?

A Yes.

Johnson explained it was important to watch for movement in the car for officer safety reasons. You just have to keep an eye on all your parties and make sure that nothing happens.

Officer Johnson testified he conducted the patdown search of appellant, including his upper torso, legs, and ankles.

Q At some point you bend down to search the legs and ankle areas of [appellant]?

A Thats correct.

Q And, clearly, as youre doing that, you cant see into the vehicle; right?

A Not true. When Im looking down, now, obviously I cant see the vehicle. But while Im standing there I have a view of probably three quarters of the pickup through the open door. I cant see Mr. Melton very well, but I can see that area that is in my view.

The patdown search lasted about a minute and a half. Appellant was in possession of a cell phone and $99.

After Officer Johnson completed the patdown search, he advised appellant that he was going to search the pickup truck, and walked toward the open drivers door. Johnson testified appellant appeared to get nervous and asked me why I was searching the truck. Johnson explained to him why I was searching the truck. And then due to the fact that he was acting a little nervous I asked him to step back to the rear of the truck with another officer. Johnson moved appellant just behind the back window of the pickup, so we were right next to the cab of the pickup. Johnson testified he did not see any furtive movements from Melton in the front passenger seat, and did not see Melton place or move anything in the vehicle.

Officer Johnson testified he searched the vehicle and found a couple of leather gloves just above the steering wheel. Johnson checked the gloves and felt that one of the gloves which was the left glove had something inside that was hard. Johnson opened the glove and there was something wrapped in plastic inside the glove. Johnson removed the item and discovered 11.53 grams of black tar heroin wrapped in clear plastic. Johnson immediately ordered Melton to step outside the truck, where another officer was standing. Johnson placed appellant in handcuffs and put him into the back of the patrol car.

Officer Johnson testified he had not noticed the gloves when he initially approached the drivers side of the vehicle and spoke to appellant after the traffic stop.

Q Fair to say that you dont have any firsthand information as to how the glove got there?

A No.

Q ... You dont know how the glove got there.

A No, there would be no way for me to know that.

Q You dont know if Mr. Melton put it there.

A I was pretty positive that Mr. Melton didnt put it there because the location of where I was standing with the door open. If there was any movement or somebody tossed the glove or tried to reach over and put the gloves way over by the steering wheel, thats a vantage point that I have in the vehicle.

Johnson testified he did not see any movement while he was outside the truck with appellant. If somebody reached over and tossed them, it would have been in my view.

Q You didnt see the glove there, though, when you first approached [appellant]; right?

A I cant say I didnt see them. I didnt pay any attention to them. The only time I paid attention to them is when I picked it up and felt something inside and it turned out to be heroin.

Officer Johnson believed the other officer searched Melton, but he was not sure if the search occurred and did not know whether Melton was found in possession of any narcotics paraphernalia. Johnson did not ask Melton about the heroin or the gloves. Johnson testified Melton was eventually released because there were no outstanding warrants for him.

Officer Johnson testified that after he arrested appellant, he did not ask any questions and appellant never said the heroin and/or the glove belonged to him. However, appellant spontaneously said that hed liked to work this off and he could take me all the way up to the top of the narcotics ladder, basically, something to that effect. Appellant said he was tired of this and he wanted to get out of it. Johnson had not found any indicia of use when he searched appellant. He inspected appellants arm to look for injection sites and did not find any. Johnson made a comment to him, and he said he puts it in his muscle, that he injected heroin into a muscle rather than a vein. Johnson inspected the muscle area but did not see any injection sites. Johnson never made any promises to appellant in response to his offer to work it off.

Officer Carlos Ramirez testified that 11.53 grams of heroin were worth over $1,000 on the street, and capable of producing 115 individual doses. It was more than a usable amount and, based on his expertise, it would be possessed for sale because a heroin user usually does not usually carry that much with them for the sheer amount. In addition, a heroin user would possess paraphernalia to ingest the heroin, such as aluminum foil, needles, a spoon, matches, or anything to light it up and use it. A person who injected heroin would have needle marks that remain from three days to a week. Most heroin addicts use heroin once or twice a day. In Ramirezs opinion, a person who possessed that amount of heroin without any indicia of use most likely possessed it for sale.

In closing argument, the prosecutor argued the evidence showed appellant transported and possessed heroin for sale. There was no doubt heroin was in his car and that appellant knew he possessed a controlled substance, because once he was caught, appellant immediately offered to give the police somebody else higher up on the food chain. Appellant possessed the drugs for sale based on the large amount and the absence of any evidence he was using drugs. The prosecutor refuted appellants expected argument that Melton threw the gloves onto the drivers side of the truck. The prosecutor noted that Officer Johnson did not see any movement from the passenger side as he searched appellant, and that he watched the other side of the truck for officer safety reasons.

Defense counsel argued it was pure speculation that appellant knew the heroin was in the truck, the case was built on circumstantial evidence, and the prosecution failed to meet the burden of proof. Defense counsel argued the evidence showed it could have been either way, such that the heroin could have belonged to appellant or Melton, but if the evidence could go either way, then the jury had to reject the conclusion that appellant was guilty. Counsel noted Officer Johnson admitted he did not notice the gloves when he initially approached the drivers side of the truck, and that he did not constantly watch the vehicles interior as he searched appellant. Counsel also addressed appellants statements to Johnson, about working off the matter, and argued that appellant never admitted possessing the drugs but knew the drugs had been found in the truck and Melton had been allowed to leave. Appellant did not accept any responsibility but knew he had two prior convictions and he was in trouble, and he was looking for a way to mitigate or minimize any adverse effects, and it was just speculation to interpret appellants statements any other way. In the alternative, counsel argued there was no evidence appellant possessed the drugs for sale, Officer Ramirez knew nothing about this case, and the jury should not rely on his opinion.

In rebuttal, the prosecutor refuted defense counsels claim there was no evidence in this case, and argued there was a large amount of heroin on appellants side of the truck, appellant offered to work off the matter because he knew about the heroin, and thats enough.

Appellant was convicted of transportation and possession of heroin for sale. He admitted the three prior prison term enhancements and the jury found the two prior strike convictions to be true. The court denied his motion to dismiss one prior strike conviction, and he was sentenced to the third strike term of 25 years to life. On appeal, he contends both convictions must be reversed because the evidence is legally insufficient to establish possession. He also raises several challenges to the true findings for the two prior strike convictionsthat he was denied the right to a jury trial on all elements of the special allegations, and the court improperly admitted a CLETS rap sheet as evidence of one of the prior convictions.^[4] Finally, he contends the court abused its discretion when it denied his motion to dismiss one prior strike conviction pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

DISCUSSION

I.

SUBSTANTIAL EVIDENCE OF POSSESSION

Appellant was convicted of transportation and possession of heroin for sale. He contends both convictions must be reversed because the evidence is legally insufficient, under both state and federal law, as to the underlying elements that he had either actual or constructive possession of the heroin, he had dominion or control over the glove, or he knew the controlled nature of the substance found in the glove, and that his mere presence in the truck was insufficient to establish possession.

We begin with the well-settled standards to assess the sufficiency of the evidence to sustain a criminal conviction. The reviewing courts task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence. (People v. Johnson, supra, 26 Cal.3d at p. 577; People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

The federal standard of review is to the same effect. Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Rodriguez, supra, 20 Cal.4th at p. 11.)

Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)

We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (People v. Bradford, supra, 15 Cal.4th at p. 1329.) We do not reweigh evidence or redetermine issues of credibility. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.)

An appellate court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425.) It must not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Pitts (1990) 223 Cal.App.3d 606, 884.) Furthermore, an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Jackson (1992) 10 Cal.App.4th 13, 21; People v. Maxwell (1979) 94 Cal.App.3d 562, 577; People v. Young (2005) 34 Cal.4th 1149, 1181.) An appellate court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

While appellant was convicted of transportation and possession for sale, he challenges the underlying possession element of both offenses and asserts there is insufficient evidence of either actual or constructive possession. It is, of course, well established that to convict an accused of possession of [a controlled substance] it must be proved that he had knowledge of its presence, that he had knowledge of its character and that he had either actual or constructive possession of a usable quantity thereof. [Citations.] It is necessary to a finding of either actual or constructive possession that the accused had the right to exercise dominion and control over the contraband or at least that he had the right to exercise dominion and control over the place where it was found. [Citations.] Conviction is not precluded, however, if the defendants right to exercise dominion and control over the place where the contraband was located is shared with another. [Citations.] (People v. Valerio (1970) 13 Cal.App.3d 912, 921; People v. Rice (1976) 59 Cal.App.3d 998, 1002-1003; People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)

It is also well settled that exclusive possession or control is not necessary. (People v. Rice, supra, 59 Cal.App.3d at p. 1003.) The fact of possession may be established by circumstantial evidence and any reasonable inferences drawn therefrom. (Ibid.; People v. Williams (1971) 5 Cal.3d 211, 215, superseded by statute on another issue as explained in People v. Romero (1997) 55 Cal.App.4th 147, 152-153.) Exclusive possession of the item, or the place where it is found, is not necessary to show dominion and control. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Dominion and control may be shown by circumstantial evidence and any reasonable inferences to be drawn therefrom. (Id. at pp. 621-622; People v. Williams, supra, 5 Cal.3d at p. 215.) However, the defendant must know of the presence and the controlled nature of the substance. (People v. Palaschak, supra, 9 Cal.4th at p. 1242.)

Appellants convictions for transportation and possession for sale of heroin are supported by substantial evidence. Appellant was driving the truck when he complied with Officer Johnsons traffic stop. Johnson found the gloves just above the steering wheel. One glove contained 11.53 grams of heroin. After he was arrested, appellant spontaneously told Johnson that hed liked to work this off and he could take me all the way up to the top of the narcotics ladder, basically, something to that effect. Appellant said he was tired of this and he wanted to get out of it. As Johnson inspected appellants arms for injection sites, appellant volunteered that he puts it in his muscle, that he injected heroin into a muscle rather than a vein.

Appellant asserts the evidence was legally insufficient because Officer Johnson did not see the gloves when he initially approached appellant in the drivers seat, Johnson lost sight of Melton, the passenger, as he conducted the patdown search of appellant, and Melton had the motive and opportunity to stash the heroin into the glove, and place the glove above the steering wheel, while Johnson conducted the patdown search. Defense counsel ably raised these issues during his cross-examination of Officer Johnson and in his closing argument, and thus raised conflicting factual inferences for the jury to resolve. However, there is nothing in the record which rendered the evidence inherently improbable or impossible to believe that appellant possessed the heroin found in the glove. Indeed, Johnson refused to concede that he did not actually see the gloves when he initially approached the drivers side of the truck. I cant say I didnt see them. I didnt pay any attention to them. The only time I paid attention to them is when I picked it up and felt something inside and it turned out to be heroin. As for the patdown search, Johnson testified his primary attention was on appellant but he kept watching Melton for any furtive movements or gestures because of officer safety issues, even as he searched appellants lower body.

Q And, clearly, as youre doing that, you cant see into the vehicle; right?

A Not true. When Im looking down, now, obviously I cant see the vehicle. But while Im standing there I have a view of probably three quarters of the pickup through the open door. I cant see Mr. Melton very well, but I can see that area that is in my view.

Johnson thus clarified that he could still see into the drivers side of the trucks interior through the open drivers door.

Finally, appellants statements to Officer Johnson provided extremely strong evidence of his possession and knowledge of the nature of the substance found in the glove. Appellant makes much of the fact that he never claimed responsibility or ownership of the heroin, but his statements constituted the circumstantial equivalent of such a claim. Appellant volunteered to work this off and take Johnson all the way up to the top of the narcotics ladder, and said he injected heroin into his muscle rather than a vein, thus inferring that he knew the item found in the glove was a controlled substance, and that he possessed the heroin because he would be able to tell Johnson where he obtained it.

There was thus overwhelming circumstantial evidence to support the jurys underlying finding that appellant possessed the heroin with the requisite knowledge. Defense counsel ably raised the possibility that Melton possessed the heroin and planted it on appellants side of the vehicle, but the jury necessarily resolved the disputed factual issue against appellant and we cannot reweigh factual or credibility issues on appeal.

II.

THE TRIAL COURTS DETERMINATION OF IDENTITY

Appellant raises a series of issues based upon the two prior strike allegations in this case: the trial court improperly made findings on the issue of his identity; defense counsel improperly conceded in closing argument that he suffered the two prior strike convictions; a CLETS rap sheet was inadmissible; and there was no evidence of his 1989 prior strike conviction.

We will set forth the factual background to the prior strike convictions and then address appellants contentions.

A. Background

The amended information alleged appellant served three prior prison terms. On the first day of trial, appellant admitted the three prior prison term enhancements outside the jurys presence.

The amended information also alleged appellant suffered two prior strike convictions: robbery ( 211) on or about June 21, 1989, in Alameda County Superior Court docket No. 97462; and robbery on January 9, 1992, in Stanislaus County Superior Court docket No. 272303. Appellant denied the allegations but did not move for bifurcation, and instead wanted the prior strike convictions tried to the jury during the trial on the substantive offenses.

In the midst of trial, the court conducted a hearing outside the jurys presence as to the identity of appellant as the person who suffered the two prior strike convictions. The prosecution introduced documentary exhibits consisting of certified copies of the records of conviction from the 1989 conviction in Alameda County (exhibit No. 2), and the 1992 conviction in Stanislaus County (exhibit No. 3), along with appellants section 969, subdivision (b) package (exhibit No. 4), and a certified CLETS rap sheet in appellants name (exhibit No. 5). The prosecution also introduced the record of conviction for a 1995 case which was not alleged as a prior strike in the amended information, but the documents included references to appellants other prior convictions (exhibit No. 6).

The prosecutor stated that only exhibits No. 2 and 3 would be introduced to the jury. Defense counsel objected to exhibit No. 6 as irrelevant because it was not based on the charged prior strike allegations. The court overruled the objection since the exhibit was circumstantial evidence of appellants identity for the other prior convictions. Defense counsel did not otherwise object to documentary exhibits Nos. 1-6.

The prosecutor also introduced exhibit No. 7, which was from appellants parole file and was not a certified document, but it contained appellants signature which would match his signature on the records for his 1989 prior conviction. Defense counsel objected and asked who would testify as to the authenticity of the signature. The prosecutor explained he was going to call appellants parole agent. Defense counsel objected and the court overruled the objection.

Thereafter, parole agent Chris Smalling testified (outside the jurys presence) that appellant was currently on parole on his caseload. Agent Smalling reviewed the documentary exhibits and testified the photographs in the documents depicted appellant, and set forth the chronological history of appellants convictions and status with the California Department of Corrections (CDC). The prosecutor asked Smalling to review exhibit No. 7, and he explained it consisted of CDCs notice and parole conditions for appellant, prepared in the regular course of business for parolees, and he recognized appellants signature on the document. Agent Smalling also identified appellants signature on the other documentary exhibits.

Defense counsel did not object to the exhibits, but asked Smalling if he saw appellant sign exhibit No. 7, the conditions of parole. Smalling said he did not.

Defense counsel did not present any evidence, but argued the documents were insufficient to identify appellant as the person who suffered the 1989 robbery conviction. While appellants signature was on a document regarding that conviction, Smalling admitted he did not see appellant sign that particular document and simply relied on his belief about the similarities between the signatures. Defense counsel argued the handwriting was not consistent, and the prosecution failed to introduce any fingerprint evidence to connect appellant to the 1989 prior conviction. The prosecutor replied that he did not have to introduce anything other than the name under People v. Mendoza (1986) 183 Cal.App.3d 390, 401 (Mendoza), and there was a presumption of identity when the first and last names match and there was no countervailing evidence. The prosecutor also argued there were several examples of appellants signature in the certified documents, and those signatures matched the signature on exhibit No. 7. There was also a fingerprint card in the CLETS documents but basically weve reached the presumption and there was no countervailing evidence to dispute his identity.

The court found the person convicted in the exhibits had the same name as appellant, the signatures in the documents for the 1989 Alameda County conviction were substantially similar to appellants signature in his parole records, and the 1989 Alameda County conviction was listed among appellants other convictions in his CLETS rap sheet. The court found ample evidence appellant was the same person named in exhibits Nos. 2 and 3, and the prior convictions were serious felonies within the meaning of three strikes.

When the jury returned to the courtroom, the court instructed them that exhibit Nos. 2 and 3 had been admitted into evidence. Neither party introduced additional evidence before the jury as to the prior convictions. In the course of the instructions on the substantive offenses, the court instructed the jury that if it found appellant guilty of a crime, it had to determine whether the prosecution proved beyond a reasonable doubt the additional allegation that appellant was previously convicted of other crimes.

Its already been determined that [appellant] is the person named in Exhibits 2 and 3. You must decide whether the evidence proves whether [appellant] was convicted of the crimes alleged.

The court read the two prior conviction allegations, and instructed the jury to only consider these allegations in determining whether appellant was previously convicted of the prior offenses, and not as proof that he committed any of the current charges.

B. The Courts Findings on Identity

Appellants first challenge to the prior strike allegations is based upon the trial courts findings as to identity. Appellant asserts he had the right to a jury trial on the identity issues pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

In Apprendi, the United States Supreme Court held: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) Section 1025, subdivision (b) states: Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived. Section 1025, subdivision (c) states: Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury. Section 1158 provides, in pertinent part, that when the fact of a prior conviction is charged in an accusatory pleading, the jury ... must ... find whether or not [the defendant] has suffered such previous conviction.

In People v. Epps (2001) 25 Cal.4th 19 (Epps), the California Supreme Court interpreted section 1025, subdivision (c) as not requiring a jury trial on the question of whether the defendant is the person who suffered the prior convictioni.e., identity. (Epps, supra, at pp. 25-28.) The right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution. (Id. at p. 23, citing Apprendi, supra, 530 U.S. at p. 490.) Epps noted that subdivision (c) was the result of a 1997 amendment to section 1025, and creates a specific exception to the statutory right to a jury trial by eliminating jury trials on the question of identity. (Epps, supra, 25 Cal.4th at pp. 24-25.) Epps held subdivision (c) of section 1025 gives the question of identity to the court. (Epps, supra, at p. 25.)

Accordingly, Apprendi does not give a defendant the right to a jury trial on the issue of identity. (People v. Garcia (2003) 107 Cal.App.4th 1159, 1165.) If ... the court finds the defendant is th[e] person [in the section 969b packet], ... [t]he court would ... instruct the jury to the effect that the defendant is the person whose name appears on the documents admitted to establish the conviction. (People v. Kelii (1999) 21 Cal.4th 452, 458; see also Epps, supra, 25 Cal.4th at pp. 26-27.) Hence, appellant had no right to have the jury determine he was the person who had been convicted of committing the prior crimes. (See People v. Garcia, supra, 107 Cal.App.4th at pp. 1164-1165 [Apprendi not violated when trial court determined defendant was person who suffered prior conviction]; People v. Belmares (2003) 106 Cal.App.4th 19, 28 [[Defendant] had no constitutional right to a jury trial on his identity as the person in the section 969b [prison] packet], disapproved on other grounds by People v. Reed (2006) 38 Cal.4th 1224, 1228.)

Appellant argues that Almendarez-Torres v. United States (1998) 523 U.S. 224, the authority on which section 1025, subdivision (c) was based, has been eroded by subsequent United States Supreme Court decisions, and section 1025, subdivision (c), violates the Sixth Amendment right to trial by jury. In support of this position, appellant cites Shepard v. United States (2005) 544 U.S. 13, 26 (Shepard), which held that the inquiry whether a prior conviction that resulted from a guilty plea is a prior offense under the Armed Career Criminal Act (18 U.S.C. 924(e)) is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information; Blakely, supra, 542 U.S. 296, 303-304, which explains that the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings; and Apprendi.

Appellant further asserts Epps will be reversed by the United States Supreme Court, but concedes that this court is bound by Epps and that he has raised the issue to preserve federal review. We are bound by the California Supreme Courts decision in Epps and acknowledge that appellant has preserved his Shepard and Apprendi arguments for further review. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III.

DEFENSE COUNSELS CONCESSIONS

Appellants next challenge is based upon defense counsels concession in closing argument before the jury, that he suffered the two prior strike convictions. Appellant asserts such a concession essentially amounted to an admission without obtaining the necessary waivers of constitutional rights, and counsel was prejudicially ineffective because he abandoned him during closing argument.

A. Background

As set forth in section II, ante, the court found appellant was the person named in the documentary exhibits of the prior strike convictions, and instructed the jury accordingly. Neither party introduced additional evidence, and the jury was instructed to review exhibit Nos. 2 and 3 to determine if the prior strike convictions were true.

During closing argument, the prosecutor advised the jury that if it found appellant guilty of any offense, it had to review exhibit Nos. 2 and 3 and determine whether he also suffered the prior convictions.

You dont have to determine the identity; its already been done. [] All you have to do is determine whether [appellant] was convicted. What you do is look here: [Appellant] having been convicted on June 21st, 1989. Now, I doubt very much that [defense counsel] is going to come up here and tell you any differently. This is not a serious issue in the case. You might say why are we doing this? Its part of the jurys job.

The prosecutor noted the documents showed appellant was convicted by plea in the other prior conviction allegation.

Defense counsel began his closing argument by addressing the prior conviction allegations, and said there was no dispute appellant suffered prior felony convictions in 1989 and 1992, then immediately moved on to the substantive offenses.

But what is in dispute is this third thing you need to analyze; and that is this heroin and who possessed it, more specifically whether [appellant] knew of its presence, whether he knew that Mr. Melton or anyone else in that vehicle might have had that heroin.

Defense counsel continued with his discussion of the prosecutions burden of proving the substantive offenses, the lack of direct evidence, and the speculative nature of the circumstantial evidence in this case. Defense counsel conceded appellant said some things to Officer Johnson after he was arrested, but noted appellant never took responsibility for the heroin found in the truck, and cited appellants prior convictions as the explanations for his statements.

Remember, he has two prior felony convictions so he knows, regardless, hes in trouble. So hes looking for a way to mitigate or minimize any adverse effects. He does not do anything to accept responsibility though for this crime because there is no evidence of any responsibility on [appellant] of this crime. Speculation is all we have.

The jury found both prior strike convictions true.

B. Analysis

To prevail on a claim of ineffective assistance of counsel, a defendant must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 389.)

The entirety of the record sets forth a clear tactical reason for defense counsels closing argument in this case. As explained in issue I, ante, defense counsel raised factual inferences to argue that appellant was never in actual or constructive possession of the heroin found in the glove. Defense counsel extensively cross-examined Officer Johnson as to whether he saw the gloves when he initially approached the truck, and whether he lost sight of the passenger, Melton, as he conducted the patdown search on appellant. Counsel ably brought out these inferences to support the defense theory that Melton could have tossed the gloves to the drivers side as Officer Johnson searched appellant. The problem with this theory, however, was appellants postarrest statements. Counsel was faced with the admissible evidence of appellants voluntary and spontaneous offer to Officer Johnson that hed liked to work this off and he could take me all the way up to the top of the narcotics ladder, basically, something to that effect. Appellant said he was tired of this and he wanted to get out of it. Appellant further explained that he injected the heroin into his muscle rather than a vein, to explain the absence of injection sites on his arms. As we explained in issue I, ante, these statements were strong circumstantial evidence of appellants knowledge of the existence and nature of the substance found inside the glove, and refuted his defense theory that he had no idea the heroin was in the truck and Melton tossed the glove on the dashboard.

Defense counsel tried to blunt the impact of appellants postarrest statements through the existence of appellants two prior strike convictions. Appellant did not move for bifurcation of the special allegations or waive a jury trial. Instead, the jury was presented with evidence as to both the substantive offenses and the prior strike convictions at the same time. Defense counsel began his closing argument by conceding appellant suffered two prior strike convictions, and acknowledged the most damaging evidence as to the drug chargeshis postarrest statementsand argued that appellant made the statements because he knew he was facing a serious prison term and was desperate to get out of the situation.

Defense counsel was barred from appealing to the jurys sympathies or passions by reference to a possible third strike term of 25 years to life. (See, e.g., People v. Fields (1983) 35 Cal.3d 329, 362; People v. Nichols (1997) 54 Cal.App.4th 21, 23-25.) By having the jury hear the evidence of two prior convictions, however, and conceding the evidence supported the strike allegations, counsel suggested a motive for appellants postarrest statements, which were otherwise inculpatory and extremely strong circumstantial evidence that he knew the heroin was in the truck. Defense counsels tactical decision was completely reasonable in light of the entirety of the record and the overwhelming evidence against appellant on the substantive issues.

Appellant separately contends that, based on the courts finding of identity and defense counsels concessions, he was denied the right to a jury trial on the truth of the prior strike allegations because the combined effect was essentially that of a guilty plea, with [appellant] acknowledging, through his defense counsel, that he was guilty, the court should have advised him of the requisite constitutional rights, and the prior strike convictions must be set aside because he did not receive those advisements. As we have explained, appellant was not entitled to a jury trial on the identity issues as to the prior strike convictions, and defense counsel had a clear and reasonable tactical reason for conceding that he suffered two prior strike convictions. We thus reject appellants supplemental arguments on these points.

IV.

SUBSTANTIAL EVIDENCE OF PRIOR CONVICTION AND ADMISSION OF CLETS REPORT

As explained ante, the amended information alleged appellant suffered two prior strike convictions for robbery, in 1989 and 1992. Appellant asserts the CLETS report was inadmissible to prove the truth of the prior strike allegations, and there is no reliable evidence that he was the person who suffered the 1989 prior conviction for robbery.

As to the CLETS report, the California Supreme Court has held that a CLETS record is admissible to prove a prior conviction. (Martinez, supra, 22 Cal.4th at pp. 115-116; see also People v. Dunlap (1993) 18 Cal.App.4th 1468, 1477-1481.) [P]rovided it satisfies applicable rules of admissibility, such evidence is admissible to establish matters other than the nature and circumstances of the conduct underlying a prior conviction. (Martinez, supra, at p. 116.)

Appellant acknowledges the California Supreme Courts holding in Martinez, but asserts it has been undermined by Shepard, supra, 544 U.S. 13. There is nothing in Shepard which undermines Martinezs rationale. As noted ante, Shepard dealt with the Armed Career Criminal Act (ACCA), which imposes a 15-year mandatory minimum sentence on any person who, after having been previously convicted of a violent felony on three separate occasions, is found guilty of the offense of being a felon in possession of a firearm. (Shepard, supra, 544 U.S. at pp. 15-16.) After the defendant pleaded guilty to possession of a firearm, the government introduced evidence of his prior burglary conviction from Massachusetts for the purpose of enhancing his sentence under the ACCA. (Shepard, supra, at pp. 15-16.) The Massachusetts burglary statute included in the definition of burglary the unlawful entry into a boat or car. (Id. at p. 17.) However, in Taylor v. United States (1990) 495 U.S. 575, the court held that only generic burglarythat is, an unlawful or unprivileged entry into, or remaining in, a building or [other] structure, with intent to commit a crimequalified as a violent felony under the ACCA. (Taylor v. United States, supra, at pp. 599, 602.) The prosecution in Shepard argued that the trial court was authorized to look beyond the facts alleged in the charging document or admitted by the defendant for the purpose of establishing that the circumstances of the defendants prior conviction would have supported a conviction under a generic burglarystatute. (Shepard, supra, 544 U.S. at p. 17.) Shepard held that inquiry into the facts underlying a prior conviction under the ACCA to determine whether a guilty plea admitted elements of a violent offense, is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. (Shepard, supra, 544 U.S. at p. 26; see also People v. Buser (2005) 132 Cal.App.4th 1188, 1191-1192.)

While Shepard is consistent with the rule in California that in determining the substance of a prior conviction, the trier of fact is limited to examination of the entire record of conviction (People v. Guerrero (1988) 44 Cal.3d 343, 355), it has no bearing on the rule articulated in Martinez that the distinct issue of the identity of the defendant or service of a prior prison term may be proved by evidence other than the other record of conviction and certified prison records. (Martinez, supra, 22 Cal.4th at p. 118.)

Appellant does not challenge the sufficiency of the evidence that he was the person who suffered the 1992 prior conviction for robbery. Instead, he challenges the sufficiency of the evidence as to the 1989 prior strike conviction, and asserts the only evidence that he was the person who suffered that conviction was based on the courts comparison of signatures on various documents, and argues the court lacked any expertise to make such a comparison. Appellant suggests the name Craig Leon is not uncommon, and notes that WIKIPEDIA has a Craig Leon who was born in 1952 who is an American born record producer, arranger, orchestrator, and composer listed.

The standard for reviewing the sufficiency of the evidence for a special allegation is the same as for the substantive offenses, as set forth ante. (See, e.g., People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In Mendoza, the defendant, Arthur Flores Mendoza, challenged the sufficiency of the evidence that he suffered prior convictions because the records identified the person who suffered the prior convictions as Arthur Contreros Mendoza and Arthur Lawrence Mendoza, aka Arthur Mendoza, aka Arthur Contrerras Mendoza. (Mendoza, supra, 183 Cal.App.3d at p. 400.) The court rejected the defendants argument and noted: It has long also been the rule in California, in the absence of countervailing evidence, that identity of person may be presumed, or inferred, from identity of name. [Citations.] Here there was no countervailing evidence. (Id. at p. 401.)

In People v. Sarnblad (1972) 26 Cal.App.3d 801, the court similarly rejected the defendants argument that there must be something more than a similarity of name, such as photographs or fingerprints, to create a reasonable suspicion that he is the same person who was previously convicted, and held, [t]here is no evidence in the record before us that defendant was not the Donald Sarnblad previously convicted. We think the name is sufficiently uncommon that the magistrates finding of identity of person is supported by an inference based on identity of name. [Citation.] (Id. at pp. 805-806.) In People v. Luckett (1969) 1 Cal.App.3d 248, the court rejected the defendants challenge to the sufficiency of the evidence supporting a prior conviction finding: We think that the name Samuel Luckett is sufficiently uncommon that, quite apart from the testimony of the witnesses, the finding of identity of person is supported by an inference based on identity of name. (Id. at p. 253, fn. omitted.)

In the instant case, the entirety of the record contains overwhelming evidence that appellant was the person who suffered the 1989 conviction for robbery, and there was no countervailing evidence that appellant was not the person named in the documentary exhibits. The amended information in this case was filed against Craig Christopher Leon, born September 8, 1961. Appellant has never asserted the amended information in this case erroneously stated his birthday or his full name. The amended information alleged two prior strike convictions against appellant: (1) robbery ( 211) on or about June 21, 1989, in Alameda County Superior Court docket No. 97462, and (2) robbery on January 9, 1992, in Stanislaus County Superior Court docket No. 272303.

Exhibit No. 2 consists of certified copies of the record of conviction in Alameda County docket No. 97462: the information, filed May 18, 1989, charged Craig C. Leon with robbery, with a prior conviction for burglary; a change of plea form in case No. 97462 stated that Craig Leon, born September 8, 1961, pleaded guilty to violating section 211, robbery, and admitted one prior conviction, and that he was advised, understood, and waived his constitutional rights on June 21, 1989, and the document was signed by Craig C. Leon.

Exhibit No. 3 consists of certified copies of the record of conviction in Stanislaus County docket No. 272303: the complaint, filed on March 19, 1991, charged Craig Leon, born September 8, 1961, with robbery and robbery for extortion with a prior felony conviction; the information charged Craig Leon with the same offenses; a minute order from September 30, 1991, stated that Craig Leon pleaded not guilty; a minute order from January 9, 1992, states Craig Leon pleaded guilty to robbery; and an abstract of judgment states Craig Leon was sentenced to two years for robbery.

Exhibit No. 3 also contains a minute order from Alameda County case No. 97462, that Craig C. Leon was convicted of robbery on June 21, 1989, the prior conviction was stricken, and that on December 5, 1989, he was placed on probation for three years.

Exhibit No. 4 consists of the section 969, subdivision (b) package for Craig Christopher Leon, CDC No. H20628, born September 8, 1961, a white male with brown hair and eyes, six feet one inch tall, weighing 190-200 pounds; along with a fingerprint card and note that he has a tomahawk tattoo and a photograph of him with the CDC No. H20628. Agent Smalling testified the photograph depicted appellant, and appellant did not object or introduce any countervailing evidence on that issue. These documents further reflect he was received into CDC in January 1992, include abstracts of judgment from other prior convictions, but do not refer to the 1989 prior robbery conviction, most likely because he was placed on probation and not sentenced to CDC.

Exhibit No. 5, the certified CLETS rap sheet, is for Craig Christopher Leon, born September 8, 1961, a white male, six feet one inch tall, weighing 155 pounds, with brown hair and eyes, and states he was charged and convicted of robbery and sentenced to three years of probation on December 5, 1989, in Alameda County case No. 97462; and he was charged and convicted of robbery, and sentenced to two years in prison on January 9, 1992, in Stanislaus County case No. 272303, along with the rest of his lengthy arrest and conviction record in Alameda and Stanislaus Counties.

Exhibit No. 6 consists of certified copies of the record of conviction for Stanislaus County Superior Court case No. 11981 for Craig Christopher Leon, born September 8, 1961, that a complaint, filed on April 6, 1995, charged him with receiving stolen property, with a prior strike for the 1992 robbery conviction, and prior prison term enhancements based on his 1992 robbery conviction, and 1993 conviction for petty theft with a prior; and a minute order, reporters transcript, and abstract reflecting that he pleaded no contest to receiving stolen property, admitted the prior prison term enhancements, and the court dismissed the prior strike allegation, and he was sentenced to eight years. Exhibit No. 7 consists of a CDC form entitled Notice and Conditions of Parole, for Craig Leon, CDC No. H20628, that he was going to be released on parole on March 25, 2003, subject to specific terms and conditions, and the form is signed by Craig Leon, and dated March 21, 2003.

We note that appellant has not challenged the sufficiency of the evidence that he suffered the 1992 prior conviction for robbery in Stanislaus County. Given the entirety of the record, there is overwhelming evidence, completely aside from any signature comparison, that appellant, born September 8, 1961, was the same Craig Christopher L