P. v. Williams

Filed 7/27/07 P. v. Williams CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury convicted defendant of felony infliction of corporal injury to a cohabitant, and the misdemeanors of making an annoying telephone call and attempted disobedience of a court order. (Pen. Code 273.5, subd. (a), 653m, subd. (a), 166, subd. (a)(4).)[1] After a court trial, the allegations that defendant suffered prior convictions in 1990 and 1995 for serious felonies within the meaning of the Three Strikes law were found true. ( 667, subd. (b)-(i).) The 1990 prior conviction was subsequently stricken. On the basis of the 1995 prior conviction, the court sentenced defendant to prison for four years, the mitigated term doubled, on the felony, and to concurrent 30 day terms on the misdemeanors.

Defendant argues it was error to use the preliminary hearing transcript and the probation report in the 1995 case to prove, at the 2006 court trial on the prior conviction allegations, that he personally inflicted injury in the 1995 case. We agree, and reverse.

STATEMENT OF FACTS

The underlying facts of the current offense are not pertinent to the issues on appeal and may be briefly summarized. Defendant and Rochelle Irwin shared an apartment in Santa Cruz in 2005. On the night of July 4, 2005, defendant became intoxicated, verbally abusive and then physically abusive to Ms. Irwin, deeply bruising her arms. She fled in tears, but returned to the apartment two days later.

Defendant called her on the telephone several times, apparently drunk and ranting and raving. He then came to the apartment, struck Irwin on the back of the head really hard and kicked her in the buttocks. Irwin ran out the door; defendant gave chase.

Neighbors called 911. The police came and arrested defendant. At about 2:00 a.m., from jail, defendant called the neighbor with whom Irwin was staying and threatened her. Defendant called that same neighbor again in October of 2005, and asked her to pass a message onto Irwin, in violation of a court order.

1995 Prior Conviction

On December 5, 1994, defendant and one Steven Talsma were charged by criminal complaint (case number 44-08251) with a felony violation of section 243, subdivision (d). On January 25, 1995, defendant was held to answer on that charge on the basis of a peace officers testimony, pursuant to initiative measure Proposition 115 (codified as 872, subd. (b) [eff. June 6, 1990] (Proposition 115)). An information charging defendant alone was filed February 8, 1995. On March 9, 1995, defendant pleaded no contest to the charge. The parties stipulated to a factual basis for the plea.

At the January 17, 2006 bifurcated trial on the prior conviction allegations, the prosecutor introduced several exhibits to prove that defendants 1995 conviction for battery with serious bodily injury ( 243, subd. (d)) qualified as a serious felony within the meaning of the Three Strikes law. ( 667, subds. (b)-(i), 1192.7, subd. (c)(8).) They included: an abstract of judgment, a criminal complaint charging defendant and Steven Talsma, an information charging defendant only, a reporters transcript of the change of plea hearing on March 9, 1995, and a reporters transcript of the preliminary hearing on January 25, 1995.

In addition, the court took judicial notice of the courts files in both the 1990 and 1995 cases. Defense counsel objected to the courts review of the exhibits and the entire court files on hearsay, relevance and Crawfordv. Washington (2004) 541 U.S. 36 (Crawford) grounds. As the court understood it, [t]he issue here [is] that [defendant] indeed suffered these convictions if there is evidence beyond a reasonable doubt contained either in the files that Im taking judicial notice of or in the exhibits that he personally inflicted that hes the one that threw the punch, assuming these were both punching cases, that is sufficient for purposes of the strike allegation, given these are 243(d)s. After taking a recess to review the files and the exhibits, the court found beyond a reasonable doubt that the 1995 prior conviction qualified as a strike on the basis of defendants statement, included on page 3 of the probation report, acknowledging that he personally hit the victim.

DISCUSSION

Defendant contends that the evidence introduced to prove that his 1995 prior conviction qualified as a serious felony under the Three Strikes law was inadmissible hearsay. He also argues that by relying on inadmissible hearsay evidence to prove that he personally inflicted the injury, the court violated his confrontation rights under Crawford. Finally, he argues that the errors in relying on inadmissible hearsay evidence to establish that his 1995 conviction qualified as a strike were prejudicial, and that without the inadmissible evidence, there is insufficient evidence to prove he personally inflicted injury; therefore, the sentence should be vacated and the case remanded to the trial court for resentencing. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 137.)

Defendant is correct that in order to prove that a violation of section 243, subdivision (d) is a serious felony for the purposes of the Three Strikes law, the evidence must show that the defendant personally inflicted great bodily injury. ( 667, subd. (b), 1192.7, subd. (c)(8).)[2] In determining whether the prior conviction at issue qualifies as a serious felony, the court may consider the entire record of conviction, which includes charging documents and abstracts of judgment, minute orders and reporters transcripts, among other things, but does not include inadmissible hearsay. (People v. Reed (1996) 13 Cal.4th 217, 226 (Reed).)

The Attorney General concedes that the germane portions of the preliminary hearing transcript received as evidence in the present case constituted inadmissible hearsay. We agree, and accept the Attorney Generals concession on this point. A preliminary hearing transcript is part of the record of conviction, but is admissible evidence on the prior conviction allegation only if it comes within a recognized hearsay exception or is relevant for a nonhearsay purpose. (Reed, supra, 13 Cal.4th at pp. 221-225.) Here, the testimony in the preliminary hearing transcript describing the nature of the offense came from a peace officer qualified to relate the statements of percipient witnesses, pursuant to Proposition 115. In People v. Best (1997) 56 Cal.App.4th 41, the Court of Appeal held it was error for the trial court to admit evidence from a Prop 115 preliminary hearing transcript to establish that a prior assault with a deadly weapon conviction qualified as a serious felony because the defendant personally used the dangerous or deadly weapon. ( 1192.7, subd. (c)(23).) Similarly, in this case, it was error for the trial court to admit the preliminary hearing transcript in the 1995 case to prove that defendant personally inflicted the requisite injury. Proposition 115 does not create a general exception to the prohibition against the use of hearsay in other proceedings, and no other hearsay exception exists. (People v. Best, at p. 46.)

The Attorney General also concedes that the use of the peace officers Prop 115 testimony about the testimonial statements made by the percipient witnesses violated Crawford. Again, we agree, and we accept the Attorney Generals concession on this point. In Crawford, the United States Supreme Court decided that an out-of-court testimonial statement made by a witness to law enforcement officials is barred by the Sixth Amendments confrontation clause even if there has been a judicial determination that the statement bears particularized guarantees of trustworthiness unless the defendant had a prior opportunity to cross-examine the witness and the witness is unavailable to testify at trial. (People v. Pirwani (2004) 119 Cal.App.4th 770, 774.) Here, defendant had no opportunity to cross-examine the percipient witnesses whose hearsay testimonial statements to the peace officer were related by him at the preliminary hearing. Accordingly, those statements were inadmissible at the bifurcated trial of the prior convictions to establish that he personally inflicted great bodily injury on the victim of the 1995 violation of section 243, subdivision (d).

The Attorney General contends, however, that the errors were harmless. He asserts that a conviction of battery with serious bodily injury ( 243, subd. (d)) is a serious felony within the meaning of the Three Strikes law whenever the defendant is the sole perpetrator of the crime. (People v. Moore (1992) 10 Cal.App.4th 1868, 1871.) He claims that the information charging defendant alone with a violation of section 243, subdivision (d) proves he was not charged on an aiding and abetting theory, because no other defendant existed for him to aid and abet. However, in this case, the complaint underlying the information charged a codefendant, Steven Talsma. Talsma could have pleaded guilty or gone to trial separately from defendant. The fact that he was not charged in the same information with defendant does not prove that defendant acted alone, or was not an aider and abettor.

The Attorney General also argues that the element of personal infliction of great bodily injury was conclusively proven by defendants admission to the probation officer, related in the probation report for the 1995 offense. According to the probation report, [t]he defendant began by stating that he admits that he hit the victim. He relies on several cases holding that a defendants admission in a probation report is both a part of the record of conviction and admissible evidence on the question whether a prior conviction qualifies as a serious felony. (People v. Gonzales (2005) 131 Cal.App.4th 767, 773; People v. Garcia (1989) 216 Cal.App.3d 233, 236-237; People v. Monreal (1997) 52 Cal.App.4th 670, 680.)[3]

However, the line of cases on which the Attorney General relies is no longer good law. After the respondents brief was filed, a divided Supreme Court held that a postconviction probation report is not a part of the record of conviction to which the court may look in order to determine the nature of a prior conviction. (People v. Trujillo (2006) 40 Cal.4th 165, 177-181 (Trujillo).) We therefore asked the parties to submit supplemental briefing on the effect of Trujillo on this case. As the Attorney General now concedes, Trujillo expressly overruled People v. Monreal[, supra,] on this point and implicitly overruled other cases including People v. Garcia[, supra,] and People v. Gonzalez[, supra]. [] . . . [] Trujillo has now foreclosed that argument. . . .

We agree that, after Trujillo, a defendants admission in a probation report is not competent evidence on which the trial court may rely to make that determination. At issue in Trujillo was whether Trujillos prior conviction for violation of section 273.5 involved his personal use of a dangerous or deadly weapon. If it did, then the prior conviction qualified as a serious felony under section 1192.7, subdivision (c)(23) and as a strike under the Three Strikes law. In connection with the prior case, Trujillo had been initially charged with a deadly weapon enhancement allegation pursuant to section 12022, but that allegation had been stricken prior to the entry of his guilty plea to the violation of section 273.5. However, at the bifurcated trial on the prior convictions, the prosecutor relied on defendants statement in the probation report, that he had personally used a knife, to prove that the prior conviction nonetheless qualified as a strike. After a bench trial, the court ruled that the prior conviction for infliction of corporal injury was not a strike, and the People appealed. (Trujillo, supra, 40 Cal.4th at pp. 170-171.)

The Supreme Court upheld the trial courts determination, concluding that a defendants statements, made after a defendants plea of guilty has been accepted, that appear in a probation officers report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not reflect[] the facts of the offense for which the defendant was convicted. (Trujillo, supra, 40 Cal.4th at p. 179, quoting from People v. Reed, supra, 13 Cal.4th at p. 223.) The court explained that the relevant inquiry in deciding whether a particular prior conviction qualifies as a serious felony for California sentencing purposes is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted. (Trujillo, at p. 179, quoting from People v. McGee (2006) 38 Cal.4th 682, 691.)

The court reasoned: A statement by the defendant recounted in a postconviction probation officers report does not necessarily reflect the nature of the crime of which the defendant was convicted. In the present case, for example, the prosecution did not attempt to prove that defendant used a knife and, instead, entered into a plea bargain in which it dismissed the allegation that defendant used a deadly or dangerous weapon and committed an assault with a deadly weapon. The prosecution could not have compelled defendant to testify, and thus could not have used defendants subsequent admission that he stabbed the victim to convict him. Once the court accepted his plea, defendant could admit to the probation officer having stabbed the victim without fear of prosecution, because he was clothed with the protection of the double jeopardy clause from successive prosecution for the same offense. [Citation.] Defendants admission recounted in the probation officers report, therefore, does not describe the nature of the crime of which he was convicted and cannot be used to prove that the prior conviction was for a serious felony. [] We agree with the concurring and dissenting opinion that information that comes to the courts attention after it has accepted a plea of guilty may be considered by the trial court in deciding such matters as whether to withdraw its prior approval of the plea [citations] and, of course, in determining the appropriate sentence. But we disagree with the concurring and dissenting opinions leap in logic that this means that defendants admission to his probation officer in the prior case that he stabbed the victim, made after the trial court had accepted his guilty plea pursuant to a plea bargain dismissing all allegations that he had stabbed the victim, reflect[s] the facts of the offense for which the defendant was convicted. [Citation.] [] As the concurring and dissenting opinion acknowledges, a defendants guilty plea, on which a sentence has not yet been imposed, constitutes a conviction for purposes of imposing an enhanced sentence. [Citations.] Defendants admission in the present case, therefore, was made after defendant was convicted and does not reflect the facts upon which he was convicted. [] Barring the use of a defendants statement reflected in a probation officers report to prove that an alleged prior conviction was for a serious felony is consistent with our rule in People v. Guerrero that in determining the nature of a prior conviction, the court may look to the entire record of the conviction, but no further. [Citation.] The reason for this limitation was to effectively bar[] 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. [Citation.] Permitting a defendants statement made in a postconviction probation officers report to be used against him to establish the nature of the conviction would present similar problems, creating harm akin to double jeopardy and forcing the defendant to relitigate the circumstances of the crime. [] A defendants statements in the probation officers report differ in this respect from a reporters transcript of the preliminary hearing, which is admissible to prove the nature of the prior conviction. [Citations.] The transcript of a preliminary hearing contains evidence that was admitted against the defendant and was available to the prosecution prior to the conviction. The transcript of a preliminary hearing, therefore, sheds light on the basis for the conviction. [] A defendants statements in the probation officers report also differ from an appellate court decision, which can be relied upon to determine the nature of a prior conviction because it may disclose the facts upon which the conviction was based. [Citation.] We held in Woodell [(1998) 17 Cal.4th 448] that appellate opinions, in general, are part of the record of conviction that the trier of fact may consider in determining whether a conviction qualifies under the sentencing scheme at issue. [Citation.] We warned, however, that [w]hether and to what extent an opinion is probative in a specific case must be decided on the facts of that case. (Trujillo, supra, 40 Cal.4th at pp. 179-180.)

The Trujillo court specifically disapproved the opinions in People v. Monreal, supra, 52 Cal.App.4th 670 and People v. Mobley (1999) 72 Cal.App.4th 761 to the extent they are contrary to this opinion. (Trujillo, supra, 40 Cal.4th at p. 181, fn. 3.)

Monreal involved an admission to a probation officer in a probation report by the defendant that he had personally used a knife to commit an assault with a deadly weapon as proof that the prior conviction qualified as a serious felony under section 1192.7, subdivision (c)(23). The abstract of judgment showed that the defendant had been convicted by a jury of assault with a knife, but not that he had personally used the knife.

Mobley relied on Monreal for the proposition that a presentence probation report is a part of the record of conviction and found that defendants admission to the probation officer, adopting his pre-arrest admissions to the police, were competent and admissible to prove that his out-of-state prior conviction qualified as a violent and serious felony for strike and enhancement purposes. Inasmuch as neither Monreal nor Mobley involved the striking of enhancing allegations prior to a plea, we cannot say that the rule of Trujillo is limited to the particular factual situation presented in that case. In our view, Trujillo controls this case. The trial courts reliance on defendants admission to the probation officer that he hit the victim, contained in the postconviction probation report,[4] was error.

However, the Attorney General argues that Trujillo did not bar the use of pre-plea admissions by defendants, and he contends that substantial pre-plea evidence for the trial courts determination exists in the reporters transcript of the 1995 change of plea hearing. This transcript is a part of the record of conviction (People v. Sohal (1997) 53 Cal.App.4th 911, 915 (Sohal)) and is also a part of the record considered by the trial court below. Specifically, the Attorney General relies on the following statement made by the prosecutor, to which neither defendant nor defense counsel objected: The reason for the disposition, Your Honor, is that Mr. Williams has an extensive record involving violent offenses, however, they all appear to be tied to alcohol. And this was essentially a one or two punch bar fight which resulted in serious injury to the victim, although in all truth, the facts would not reflect anything that would be as much luck as it could be Mr. Williams [sic] ability to punch in bar fights. (Italics added.)

Relying on Sohal, supra, 53 Cal.App.4th 911, the Attorney General argues that, with this statement, the prosecutor impliedly, if not expressly, accused [defendant] of personally inflicting great bodily injury on the victim and that defendants failure to protest was a tacit admission of the statements made in his presence. We disagree.

Sohal is distinguishable. In Sohal, the trial court found that the defendant had personally used a deadly weapon when he committed a prior aggravated assault, in reliance upon a reporters transcript of the change of plea hearing. There, the prosecutor stated the factual basis for the plea by saying that he could produce at trial facts showing that the defendant had struck the victim on the head with a metal pipe. Defense counsel agreed, stating, they can produce that evidence. Immediately thereafter, the court asked the defendant: Mr. Sohal, on the charge assault with a deadly weapon , do you plead guilty, not guilty or no contest? The defendant replied, No contest and I am guilty. (Sohal, at p. 914.) Rejecting a claim that the prosecutors statement of the factual basis for defendants pleas constituted inadmissible hearsay, the Sohal court found that the defendant made an adoptive admission of the truth of the facts underlying the plea on the prior. (Id. at pp. 915-916.)

Here, by contrast, the prosecutors comment was not made in the course of stating the factual basis for the plea. It was made for the purpose of explaining to the court the basis for a plea-bargained probationary sentence for a person with defendants extensive record involving violent offenses. Furthermore, unlike the prosecutors statement in Sohal, the prosecutors statement here did not clearly state any facts. Indeed, nothing about the statement is clear, but at worst it characterized the offense as a one or two punch fight and seemed to suggest that the victims injuries may have been unintentional, as much a result of (bad) luck as of skill on defendants part. In any event, the point of the statement appears to have been to minimize the offense. If so, defendant would have had no incentive to set the record straight. Given the oblique nature of the statement, and especially in light of the fact that another person (Steve Talsma) was involved and criminally charged in connection with the fight,[5] we do not agree that defendants failure to speak up constitutes an adopted admission.

The fact that defense counsel and the prosecutor stipulated to a factual basis for the plea does not alter our conclusion. No specific facts were recited by either attorney. The stipulation came long after the prosecutors comments on the disposition, after further discussion of the bargain, voir dire of the defendant as to his rights and waivers, and just before the taking of the plea.

Finally, a factual basis for the plea existed whether defendant personally threw a punch or aided and abetted Talsma in doing so: in either event, defendant was criminally liable for the resulting injury. Therefore, the stipulation did not necessarily admit personal infliction of great bodily injury. Since neither the prosecutors statement, nor the attorneys stipulation to a factual basis for the plea, constitutes an adoptive admission, they do not provide substantial evidence for the courts finding that defendants prior conviction constituted a strike. Reversal is required.

CONCLUSION

The trial court committed Crawford error in admitting the peace officers Proposition 115 testimony, about statements made to him by the percipient witnesses, at the bifurcated trial on the prior conviction allegations under the Three Strikes law. In light of Trujillo, the trial court also erred in relying on defendants admission to the probation officer to prove that he personally inflicted injury on the victim. Finally, the transcript of the 1995 plea does not demonstrate any admissions on defendants part that he personally inflicted injury on the victim. Therefore, the courts error in admitting the preliminary hearing testimony is not harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18), and we must reverse the judgment.

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court for resentencing or (at the Peoples election) retrial of the 1995 prior conviction allegation.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] Unless otherwise indicated, all statutory references are to the Penal Code.

[2] Section 667, subdivision (d) provides in relevant part that for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as: (1) Any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.

Section 1192.7, subdivision (c)(8) provides in relevant part: As used in this section, serious felony means any of the following: any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice.

[3] Defendant contends that it is not entirely clear that the probation report in the prior 1995 felony battery conviction was even admitted into evidence and points out that it is not among the listed exhibits. We agree the probation report was not one of the separate exhibits. However, it was a part of the courts file in case number 44-08251, of which the court took judicial notice. The record of the January 17, 2006 proceedings is clear that the court anticipated looking for relevant information in a probation report (I can also look at the probation report, if indeed there is one). After taking a recess to review the judicially noticed files, the court specifically cited to defendants admission in the probation report as the basis for its decision finding that the 1995 conviction qualified as a serious felony and a strike. Thus, the transcript of the January 17, 2006 proceedings supports the view that the 1995 probation report was in the court file that was reviewed by the court.

[4] The probation report shows that defendant entered his plea on March 9, 1995 and that the probation officer interviewed him on March 17, 1995.

[5] At the sentencing hearing, the prosecutor stated: Mr. Williams was a codefendant in one of those cases, apparently referring to defendants 1995 conviction. Defense counsel added: The more recent case, its my understanding, involved some sort of barroom fight with a number of people. [] . . . [] And one individual was struck in the face and sustained some injuries.