P. v. Francisco
Filed 9/3/13 P. v. Francisco CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
TITUS ADRIAN FRANCISCO,
Defendant and Appellant.
B242703
(Los Angeles County
Super. Ct. No. SA080090)
APPEAL from
a judgment of the Superior Court of
County.
James R. Dabney, Judge.
Affirmed as modified.
Patricia J.
Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Esther P.
Kim, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
A jury convicted defendant Titus Francisco of one count
of second degree commercial burglary
in violation of Penal Code section 459.
found 11 prior prison term allegations to be true but subsequently struck one
of the allegations on the court’s own motion.
The trial court sentenced defendant to a total term of 12 years in state
prison. The sentence consisted of the
midterm of two years in count 1, plus one year each for the 10 prior prison term
enhancements.
Defendant
appeals on the ground that the evidence was insufficient to support certain of
the trial court’s findings on the prior prison term allegations, resulting in a
violation of his right to due process.
FACTS
Prosecution Evidence
On February
17, 2012, Ismael Parra was working at the El Segundo Best Buy store. Parra observed a man, later identified as
defendant, kneeling in front of a display case.
Defendant appeared to be trying to pry open a laptop box. Para noticed that the box was missing its
extra security device called a “spider wrap†that is supposed to prevent the
box from being opened. Parra approached
defendant and asked if he needed help.
Defendant appeared startled and muttered something before walking away
with the laptop box. Parra contacted
loss prevention services and asked them to keep an eye on defendant and the
laptop.
Stephanie
Hammond, the store manager, was alerted to the situation. She went to the loss prevention desk to view
a monitor showing defendant walking around the store with a white box. Hammond saw defendant approach the cash
register. She saw him place the laptop
box “underneath the register†at a point where the cashier could not see
it. Defendant purchased a drum skin from
the musical instruments section while keeping the laptop box out of sight. When the transaction was complete, Hammond
approached defendant and asked him if he was going to pay for the laptop. Defendant said, “‘This is mine. I was returning it.’†When Hammond asked if defendant had obtained
a pink sticker that is placed on all returns by customer service, defendant
then said “no†and that he had just purchased it. Hammond said she needed to see a receipt or
she would have to review videotape of defendant coming in with the laptop.
receipt’†and began leaving the store.
Defendant left the laptop box. An
associate later found a spider wrap in the computer section. Another associate followed defendant through
the parking lot and saw defendant enter a car driven by a female. Based on the description of the car and the
occupants, the police later pulled over the car in which defendant was riding. The retail value of the laptop was
approximately $900.
Defense Evidence
Defendant presented no evidence in
his defense.
DISCUSSION
I. Defendant’s Argument
Defendant
argues that a report from the California Law Enforcement Telecommunications
System (CLETS), standing alone, is not evidence that is reasonable, credible,
and of solid value such that a rational trier of fact could find that he
suffered a prior conviction within the meaning of section 667.5, subdivision
(b). He maintains that the trial court’s
reliance on this evidence violated his due process right to acquittal except
upon proof beyond a reasonable doubt of the truth of the allegations against
him.
II. Relevant Authority
At the time
of defendant’s sentencing hearing (July 2012), section 667.5, subdivision (b)
provided in pertinent part as follows:
“Except where subdivision (a) [pertaining to a ‘violent’ new offense]
applies, where the new offense is any felony for which a prison sentence or a
sentence of imprisonment in a county jail under subdivision (h) of Section 1170
is imposed or is not suspended, in addition and consecutive to any other
sentence therefor, the court shall impose a one-year term for each prior
separate prison term or county jail term imposed under subdivision (h) of
Section 1170 or when sentence is not suspended for any felony; provided that no
additional term shall be imposed under this subdivision for any prison term or
county jail term imposed under subdivision (h) of Section 1170 or when sentence
is not suspended prior to a period of five years in which the defendant
remained free of both the commission of an offense which results in a felony
conviction, and prison custody or the imposition of a term of jail custody
imposed under subdivision (h) of Section 1170 or any felony sentence that is
not suspended. . . .†Due process
requires proof of each of these elements in order to impose the
enhancement. (People v. Tenner (1993) 6 Cal.4th 559, 563, 566.)
“The
prosecution has the burden of proving beyond a reasonable doubt each element of
the section 667.5, subdivision (b) sentence enhancement, including the fact of
no five-year ‘washout’ period.
[Citation.] When, as here, a
defendant challenges on appeal the sufficiency of the evidence to sustain the
trial court’s finding that the prosecution has proven all elements of the
enhancement, we must determine whether substantial evidence supports that
finding. The test on appeal is simply
whether a reasonable trier of fact could have found that the prosecution
sustained its burden of proving the enhancement beyond a reasonable doubt. In that regard, in conformity with the
traditional rule governing appellate review, we must review the record in the
light most favorable to the trial court’s finding(s).†(People
v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
Although
“the state has the burden of proving that a defendant suffered a prior
conviction within the meaning of section 667.5, the usual rules of evidence are
applicable to assist the prosecution in presenting a prima facie case. Thus, a court is allowed to make reasonable
inferences from the facts presented.†(
953, 959; see also People v. Delgado
(2008) 43 Cal.4th 1059, 1066.)
At the time
of defendant’s sentencing hearing, section 969b provided: “For the purpose of establishing prima facie
evidence of the fact that a person being tried for a crime or public offense
under the laws of this State has been convicted of an act punishable by
imprisonment in a state prison, county jail or city jail of this State, and has
served a term therefor in any penal institution, or has been convicted of an
act in any other state, which would be punishable as a crime in this State, and
has served a term therefor in any state penitentiary, reformatory, county jail
or city jail, or has been convicted of an act declared to be a crime by any act
or law of the United States, and has served a term therefor in any penal
institution, the records or copies of records of any state penitentiary,
reformatory, county jail, city jail, or federal penitentiary in which such
person has been imprisoned, when such records or copies thereof have been
certified by the official custodian of such records, may be introduced as such
evidence.â€
The
official records exception to the hearsay rule, embodied in Evidence Code
section 1280, provides: “Evidence of a writing made as a record of an
act, condition, or event is not made inadmissible by the hearsay rule when
offered in any civil or criminal proceeding to prove the act, condition, or
event if all of the following applies:
[¶] (a) The writing was made by and within the scope
of duty of a public employee. [¶] (b)
The writing was made at or near the time of the act, condition, or
event. [¶] (c)
The sources of information and method and time of preparation were such
as to indicate its trustworthiness.â€
(See People v. Martinez (2000)
22 Cal.4th 106, 119-120 (Martinez).) “A trial court has broad discretion in
determining whether a party has established these foundational
requirements. [Citation.]†(Id.
at p. 120.) A reviewing court may
overturn the trial court’s exercise of discretion “‘“only upon a clear showing
of abuse.â€â€™ [Citations.]†(Ibid.)
III. Proceedings Below
Angela
Hubbard, a paralegal with the district attorney’s office, testified regarding
five section 969b (969b) packets from the California Department of Corrections
(CDC) produced in the first of defendant’s hearings on the prior prison term
allegations. The prosecutor introduced
each packet as a separate exhibit, labeled Nos. 1 through 5. Hubbard identified the abstracts of judgment,
photographs, and other documents in each exhibit, which attested to defendant’s
commitments to state prison in Case Nos. YA071871, TA099214; FWV09420 and F0132350;
LA029699, BA144361; BA144361; and A962646 and A804342. Hubbard also identified a 19-page CLETS rap
sheet (People’s Exh. No. 6) that she had “run†prior to coming to court by
entering the CII number
name="_ftnref3" title="">[3] into the CLETS system.
Over
defense objection, the trial court found that Evidence Code sections 1280 and
1530
CDC records in the 969b packets. The
court found true the allegations of prior prison term commitments reflected in
the 969b packets.
The trial
court noted that there were no 969b packets for six of the prior prison term
allegations, and the prosecutor acknowledged she was relying on the CLETS
printout to prove these. Defense counsel
questioned the reliability of the printout.
Counsel requested an opportunity to research its validity because she
had received no notice it would be used.
The trial court allowed counsel time to prepare an argument on the issue
of whether the CLETS rap sheet was admissible under Evidence Code sections 1280
and 1530.
At the
subsequent hearing, counsel argued that the prosecutor’s repeated requests to
the CDC had produced only the 969b packets the court had reviewed; therefore
the People should not be allowed to fill in the gap with the CLETS
printout. The court reviewed the CLETS
printout and found that the prison commitments it had found true based on the
969b packets were accurately reflected in the CLETS printout. The court stated, “So it appears to me from
looking at the CLETS printout they accurately reflected every single one of the
convictions that we had in the 969b packets, which leads me to believe that all
the entries were in fact correctly entered in the official records as
required. And pursuant to the cases
cited in the People’s motion, I will be receiving People’s 6 into
evidence.†Defense counsel again
protested that the CDC was asked to produce all the documents for every time
defendant was in prison, and some of the commitments in the CLETS were not in
the documents the CDC produced. The
trial court replied, “The fact that . . . the People failed to procure the 969b
packets for postconvictions is not enough for me to doubt the accuracy of the
CLETS printout showing those convictions.
So I am finding all those priors to be true. . . .â€
IV. CLETS Report Properly Admitted; Evidence Sufficient
As the
parties acknowledge, the leading case on the admissibility and use of CLETS
printouts is Martinez,
of sufficiency of the evidence, the gist of his complaint is that the CLETS
report was the sole document used to prove the prior conviction allegations at
issue. He points out that in
superior court files, a prison packet, abstracts of judgment, and testimony
from a deputy sheriff to prove the prior conviction allegations. Defendant appears to argue that the CLETS
report lacks foundation because of the lack of additional evidence. Thus, defendant is essentially challenging
the trustworthiness, or the third prong of the official records exception to
the hearsay rule, and, hence, the report’s admissibility. As explained infra, we agree with Martinez
that the CLETS report was not lacking in trustworthiness, and we conclude the
evidence in this case was sufficient.
In
paralegal from the district attorney’s office testified regarding several
documents, including a CLETS printout he had generated on the day of his
testimony. (Martinez, supra, 22
Cal.4th at pp. 112-113, 120.) The
paralegal’s testimony about the contents of the CLETS printout, the sources of
the information it contained and the fact that personnel authorized to use
CLETS obtain criminal history information by entering into the computer a CII
number, as did paralegal Hubbard in the instant case. (Id.
at p. 121.) The Martinez defendant argued that the trial court erred in admitting
the CLETS document under the official records exception to the hearsay rule
(Evid. Code, § 1280) as evidence of prior convictions and prior prison
terms. (Martinez, at p. 113.) The
Supreme Court stated that section 969b “‘“is permissive and not mandatoryâ€â€™â€
and “‘“does not restrict the People from using other forms of proof . . .†to
establish the fact of previous imprisonment. [Citation.]’ [Citation.]†(Id.
at pp. 116-117.) In sum, no statute
required the prosecution to provide a 969b packet to prove the fact of a prior
prison term. (Id. at p. 117.)
Next, the
court found that People v. Guerrero
(1988) 44 Cal.3d 343, cited by defendant in the instant case, which limited the
scope of proof of prior conviction allegations to the record of conviction,
applied only to the circumstances of the crime and not to other aspects of the
prior conviction such as identity of the defendant or service of a prior prison
term. (Martinez, supra, 22
Cal.4th at pp. 117-118.)
The
statutes of which the trial court could have taken judicial notice and that
have imposed obligations on California law enforcement agencies regarding the
compilation and reporting of criminal history information. (Martinez,
supra, 22 Cal.4th at pp.
121-125.) These statutory reporting
duties were significant because Evidence Code section 664 sets forth a
presumption that official duty has been regularly performed. (Martinez,
at p. 125.) Because of these statutory
duties to carefully report and record criminal history information, CLETS
records came within the Evidence Code section 664 presumption. (Martinez,
at pp. 125-126.) Martinez went on to hold that the CLETS printout satisfied all
three requirements of the official records exception to the hearsay rule,
Evidence Code section 1280, in that the writings were made by and within the
scope of duty of a public employee (Martinez,
at pp. 119, 125-126), the writings were made at or near the time of the act or
event (id. at pp. 126-127), and the
information was trustworthy (id. at
pp. 128-131).
As noted,
defendant attempts to distinguish Martinez
on the grounds that the CLETS report in that case was used in addition to other
evidence. Martinez clearly stated, however, that the prosecution was not
required to produce 969b packets, which is where abstracts of judgment and
chronological logs are typically found.
(Martinez,
Court mentioned the deputy sheriff’s testimony as further evidence that
supported the trustworthiness of the CLETS printout, the court by no means
indicated that such testimony was required.
The court noted this testimony in a short paragraph at the end of a
lengthy discussion of the reasons the CLETS printout was trustworthy. (Id.
at pp. 128-131.) Moreover, nothing in
the official records exception requires foundational testimony from a custodian
or the preparer of the record.
We also
note that the official duty presumption merely shifts the burden of proof to
the opposing party, who may rebut the presumption. (Martinez,
supra, 22 Cal.4th at p. 125.) Defendant did not contest that he suffered
these prison terms and offered no evidence to the contrary, despite being given
extra time to prepare for the second hearing on the allegations. “‘[O]fficial government records clearly
describing a prior conviction presumptively establish that the conviction in
fact occurred, assuming those records meet the threshold requirements of
admissibility. (See Evid. Code, § 664
[“It is presumed that official duty has been regularly performedâ€].) Some evidence must rebut this presumption
before the authenticity, accuracy, or sufficiency of the prior conviction
records can be called into question.’
[Citation.] [¶] Thus, if the prosecutor presents, by such
records, prima facie evidence of a prior conviction that satisfies the elements
of the recidivist enhancement at issue, and if there is no contrary evidence,
the fact finder, utilizing the official duty presumption, may determine that a
qualifying conviction occurred.
[Citations.]†(
Defendant made no attempt to rebut the properly admitted evidence in
this case.
We do not
agree with defendant’s argument that the analysis of Assembly Bill No. 1387,
which enacted the Criminal Convictions Record Act (CCRA) indicates that CLETS
was meant to serve as no more than an aid to acquiring proper records of
conviction. As stated in
Legislature did not question the accuracy or trustworthiness of existing
information sources, such as CLETS.†(
In fact, one legislative analysis explained that “‘prosecutors receive
preliminary criminal history information through [the Department’s] Criminal
Identification and Information System,’ which ‘provides timely accurate posting of criminal history data.’†(Ibid.) Martinez
stated that, by establishing through the CCRA a simplified process for proving
facts regarding a defendant’s criminal history, the Legislature did not intend
to exclude other methods of proof such as admission of CLETS records. (Ibid.)
In the
instant case, therefore, the trial court did not abuse its discretion in
finding the CLETS report trustworthy, nor did it err in finding the CLETS
printout was sufficient evidence to support true findings on the allegations
for which no prison packet had been produced.
The trial court noted that the 969b packets the prosecutor had produced
verified the information in the CLETS printout for the same convictions. Accordingly, since we conclude that the
evidence in the CLETS report was admissible and sufficient to prove the prior
prison term allegations at issue, we reject defendant’s claim that two more of
his enhancements fail because, had he prevailed, they would fall within the
“washout†period.
Finally,
our examination of the CLETS report reveals that the prior prison terms found
by the trial court are all contained in the report, which was certified by
Hubbard as a true and original document received from the CLETS system by the
district attorney’s office. The trial
court did, however, use the prison term from case No. LA029699 twice in making
its list of 10 prior prison terms.
constitutes clerical error. “‘Generally,
a clerical error is one inadvertently made, while a judicial error is one made
advertently in the exercise of judgment or discretion. [Citations.]’†(People
v. McGee (1991) 232 Cal.App.3d 620, 624.)
Courts may correct clerical errors at any time, including appellate
courts that have properly assumed jurisdiction of a case. (People
v. Mitchell (2001) 26 Cal.4th 181, 185.)
Defendant’s sentence must be reduced by one year to correspond with the
number of separate prior prison term allegations found true by the trial
court.
DISPOSITION
The judgment is modified to
strike one of defendant’s one-year enhancements under section 667.5,
subdivision (b). In all other respects,
the judgment is affirmed. The superior
court is directed to amend the abstract of judgment and forward a corrected
copy to the Department of Corrections and
Rehabilitation.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
FERNS, J.*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">[1] All further references to statutes are
to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] Hammond’s
subsequent review of the videotape showed defendant entering the store with
nothing in his hands.
