P. v. Garcia

Filed 8/25/08 P. v. Garcia CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Lance Ito, Judge. Affirmed.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

In an amended information filed March 21, 2007, appellant Jose Lopez Garcia was charged with one count of making criminal threats (Pen. Code, 422).^[1] The information also alleged, pursuant to Californias Three Strikes law ( 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)), that appellant had suffered prior convictions for robbery ( 211) in 1996 and making criminal threats ( 422) in 2005. In bifurcated proceedings, after the jury found appellant guilty as charged in count one, the court found the allegations as to both prior convictions to be true. Appellant filed this timely appeal, contending there was insufficient evidence to support the courts true finding that appellant had suffered the 1996 robbery conviction. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the initial phase of proceedings against appellant, a jury found him guilty of one count of making criminal threats.^[2] After the jury returned its verdict, appellant waived a jury trial on the truth of the prior convictions allegations. The court held a bench trial on appellants priors. Pursuant to section 969b, the prosecution introduced two prison packets into evidence as exhibits 1 and 2 (the 969b packets) to prove appellants prior convictions for making criminal threats in 2005 and for robbery in 1996. The 969b packets were provided by the California Department of Corrections (CDC), and their contents were certified as true and correct copies of the original documents remaining in CDC custody. Appellant did not object to the admissibility of this evidence.

Exhibit 1 contained a set of documents relating to appellants 2005 conviction for making criminal threats.^[3] The exhibit included an abstract of judgment on which the defendant was identified as Carlos Lopez Garcia and his CDC number was listed as V76020. His birth date was shown as November 12, 1972. The exhibit also included a photograph on which was written V76020 and Garcia, C.

Exhibit 2 contained two abstracts of judgment and fingerprint cards. One abstract of judgment indicated that the defendant Carlos Garcia Gomez had been convicted on November 2, 1994 of possession of a weapon in jail and sentenced to a prison term of two years.^[4] The corresponding fingerprint card described him as born on February 17, 1971. The card also listed his CDC number as J58360.

Exhibit 2s second abstract of judgment indicated that Carlos Gomez aka Jose L. Garcia was convicted January 23, 1996, of robbery in the second degree and sentenced to a prison term of two years. The CDC number J94571 was written on the abstract. The fingerprint card for the robbery conviction had the CDC number J94571 written in, but crossed out and replaced with the CDC number J58360. There was no birth date listed, but the robbery fingerprint card stated the individual was 24 years old, which would have corresponded to a birth date in 1971 or 1972. The card further stated he had 7th Broadway Gangster tattooed on his left arm.

Exhibit 2 included a single prison photograph taken December 6, 1996. The photograph depicted a Hispanic male holding a card on which was written the name C. Gomez and the CDC number J58360.^[5]

The trial court found the allegations concerning appellants prior convictions true. The judge noted that appellant had used different names -- including, Carlos Gomez Garcia and Carlos Lopez Garcia -- but concluded that the provided photographs linked him with each offense.^[6] Pursuant to the three-strikes law, the court sentenced appellant to a term of 35 years to life.

DISCUSSION

Appellants sole contention on appeal is that there was insufficient evidence to establish his identity as the perpetrator of the 1996 robbery. In our review of the trial courts findings of fact -- including findings with regard to the truth of prior convictions -- we examine the record in the light most favorable to the [finding] to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1067.)

When the accused challenges a prior conviction, the state bears the burden of proving it beyond a reasonable doubt. [Citations.] (People v. Brucker (1983) 148 Cal.App.3d 230, 241, quoting, People v. Lizarraga (1974) 43 Cal.App.3d 815, 820.) The state may meet this burden . . . by introducing into evidence several types of evidence: certified copies of prison records [citations]; certified copies of court minute orders or of the abstract of judgment [citation]; or certified copies of writings in the custody of a public entity. [Citations.] (People v. Brucker, supra, 148 Cal.App.3d at p. 241.) Where, as here, the prosecution presents prima facie evidence of a prior conviction by introducing 969b packets into evidence, the trial court is allowed to make reasonable inferences from the facts presented [in the 969b packets]. If there is no evidence to the contrary, the trial court may consider the abstract and the facts of the particular case, and utilizing the official duty presumption [(Evid. Code, 664)], find a defendant was convicted of and served the term of imprisonment for the listed felony. (People v. Henley (1999) 72 Cal.App.4th 555, 560.)

To support his contention of insufficient evidence, appellant describes a litany of inconsistencies between the various documents submitted in the 969b packets such as differences in CDC numbers, birth dates, and names, and argues that these inconsistencies precluded a true finding as to his prior robbery conviction. Thus, the question presented is whether, despite the inconsistencies in the CDC documents, the courts finding that appellant was the perpetrator of the 1996 robbery was supported by substantial evidence. We conclude that it was.

The trial court relied primarily on the clear and unblemished photograph included in exhibit 2, visually comparing it to appellant in court and concluding that the likenesses matched. This evidence, in itself, was enough to establish appellants identity as the perpetrator of the 1996 robbery by a rational trier of fact. (See People v. Foster (1988) 201 Cal.App.3d 20, 26 [where prosecution introduced certified records from CDC which included a photograph of the prisoner and jury could satisfy itself by comparing the photo with appellant to determine if he was the same person, substantial evidence established the prior].) Moreover, the documents relating to the 1996 conviction for robbery stated that the defendant Carlos Gomez was also known as Jose L. Garcia, a name virtually identical to the name under which appellant was charged and convicted here. 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. (People v. Mendoza (1986) 183 Cal.App.3d 390, 401, italics omitted.) Where the name of the defendant is unusual, a prior can be established by the name alone. (People v. Brucker, supra, 148 Cal.App.3d at p. 242; People v. Luckett (1969) 1 Cal.App.3d 248, 253.) Where the name is not unusual or not identical, similarity of names is one factor that can support the prior conviction finding. (People v. Garcia (1970) 4 Cal.App.3d 904, 911-912.) While the name Jose L. Garcia was not sufficiently unusual to support a positive identification by itself, it corroborated the photographic identification made by the trial court and provided additional evidence to support the courts finding.^[7]

Appellant argues that because the CDC number on the photograph used by the court to establish the robbery prior (J58360) did not match the number on the abstract of judgment for the 1996 robbery conviction (J94571), there was nothing to link the photograph to the robbery conviction and hence, reasonable doubt that he was the perpetrator of that crime.^[8] Three pieces of evidence refute this argument. First, the photograph was taken December 6, 1996, a date that falls squarely within the two-year prison sentence handed down January 23, 1996 for the robbery conviction. Second, the name and CDC number on the photograph match those on the fingerprint card for the robbery conviction. Finally, the name on the photograph matches the name on the abstract of judgment for the robbery conviction. It was entirely reasonable for the trial court to infer from this information that the photograph in exhibit 2 depicted the perpetrator of the robbery. In sum, the courts conclusion that the man who committed the robbery and appellant were one and the same is fully supported by the evidence.

DISPOSITION

The courts judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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

^[2] Because appellant does not raise any issues pertaining to the first phase of trial, we do not discuss the evidence that established the conviction.

^[3] Appellant does not contest the trial courts true finding that he suffered the 2005 criminal threats conviction.

^[4] The 1994 conviction was not alleged to be a serious felony within the meaning of the three strikes law and therefore was not relevant to appellants sentence.

^[5] The Hispanic male depicted in exhibit 2 appears to be the same individual depicted in the photograph in the exhibit 1 section 969b packet.

^[6] Later, in considering a defense motion to strike a strike, the court noted that appellant has a lengthy criminal history that goes back to when he was a juvenile, beginning in 1991 and had nine different names and five different dates of birth on file with the criminal justice system.

^[7] Although the court did not explicitly rely on this evidence at trial, appellants wife testified he was a member of the 18th Street gang and had a 7 and Broadway tattoo. The fingerprint card for the 1996 robbery conviction showed that the perpetrator of that crime had a 7th Broadway Gangster tattoo. This was sufficiently uncommon to further support the finding of shared identity. (People v. Luckett, supra, 1 Cal.App.3d at p. 253.)

^[8] We note that the 2005 conviction for criminal threats -- which appellant does not contest -- was labeled with yet another CDC number, V76020. We glean from this that CDC numbers may be assigned in some instances before a positive identification is made of an arrestee, and that where a defendant purposely attempts to evade identification through the use of multiple aliases and misinformation, as appellant did here, he may acquire multiple CDC numbers in his file.