P. v. Martinez

Filed 2/19/08 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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An information filed on February 22, 2007, charged appellant, inter alia, with taking a vehicle without the owners consent in violation of Vehicle Code section 10851, subdivision (a) (count 1), receiving a stolen vehicle in violation of Penal Code section 496d^[1](count 2), and felony evading a pursuing police officer in violation of Vehicle Code section 2800.2 (count 3). Other crimes charged in the information were dismissed prior to trial. It was alleged as to all counts that appellant had suffered a prior prison term within the meaning of section 667.5 subdivision (b).

The jury acquitted appellant on counts 1 and 2 and convicted on the evading charge in count 3. Trial on the section 667.5, subdivision (b) prison prior was bifurcated, and appellant waived jury trial on that charge. The trial court subsequently found the alleged prison prior enhancement true.

The court sentenced appellant to three years in state prisonthe middle term of two years on count 3, plus one year for the prison prior enhancement.

Appellants only contention is that there is no substantial evidence to support the trial courts finding that the prison prior enhancement is true. Thus, the evidence relating to the current charge is not relevant, and we will proceed directly to a discussion of the single issue raised by appellant. We will conclude that substantial evidence does support the true finding on the enhancement.

Discussion

In reviewing the sufficiency of the evidence of a prior prison term, the reviewing court must determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 567; People v. Bueno (2006) 143 Cal.App.4th 1503, 1507.) In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (Ibid.)

The information here charged that appellant suffered a prior conviction on April 3, 1997, in Riverside County, for possession of a controlled substance for sale, in violation of Health and Safety Code section 11378; that he served a separate term in state prison as a result of that conviction; and that he did not remain free of the commission of a new felony offense, or of prison custody, for a period of five years after the conclusion of his term of imprisonment. The evidence offered in support of this allegation was as follows.

Peoples exhibit 4, admitted into evidence, is a section 969b prison packet, which includes an abstract of judgment from the Riverside Superior Court, a fingerprint card, a booking photo, and a form titled chronological history. These documents show that a person named Jose Guadalupe Barajas was convicted in Riverside County and sentenced to a prison term of two years on April 17, 1997. He was received by the Department of Corrections and released on parole on May 28, 1998. This dateMay 28, 1998started the running of the five-year period specified in section 667.5, subdivision (b). (People v. Nobleton (1995) 38 Cal.App.4th 76, 84-85.)

Peoples exhibit 5 was admitted, along with the testimony of fingerprint examiner Stephanie Potter. Exhibit 5 is a fingerprint card stemming from appellants arrest and booking in the present case. Ms. Potter confirmed, prior to her testimony, that the card carries the fingerprints of appellant Jose Juan Martinez. She compared the fingerprints on exhibit 5 and those on the fingerprint card from exhibit 4, the section 969b packet in the name of Jose Guadalupe Barajas, and concluded they were from the same person.

Thus, through exhibits 4 and 5, along with Ms. Potters testimony, the prosecution presented substantial evidence to show that appellant suffered the prior conviction charged in the section 667.5 enhancement and served time in prison as a result. Substantial evidence that appellant did not remain free of both further prison custody and the commission of a new felony offense for a period of five years after May 28, 1998, also was required. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1231.)

Peoples exhibit 6 comprised a felony complaint, plea forms, and trial court minute orders. Together, the exhibit shows that one Jose Guadalupe Garcia Barajas, also known as Jose Garcia Guadalupe, also known as Jose Guadalupe Barajas Garcia, was charged in a felony complaint filed in Fresno Superior Court on March 28, 2002; on April 8, 2002, he entered a guilty plea to and was convicted of a felony violation of Health and Safety Code section 11377, subdivision (a), possession of a controlled substance. Exhibit 7, comprising documents similar to those in exhibit 6, shows an additional conviction for felony possession of a controlled substance on the same date in a separate case against the same person named in exhibit 6. Both convictions stemmed from possession offenses alleged to have occurred in March of 2002, and both resulted in Proposition 36 probationary sentences. (See  1210.1 [added by initiative, Prop. 36,  5, as approved by voters, Gen. Elec. (Nov. 7, 2000) eff. Nov. 8, 2000].) The prosecution relied on these two convictions to show, and they do show, that Jose Guadalupe Barajaswhom we know from the fingerprint evidence in exhibits 4 and 5 along with the testimony of the fingerprint expert is the same person as appellant Jose Juan Martinezcommitted two new felony offenses in March of 2002. The record contains substantial evidence that appellant committed two new felony offenses within five years from the date of his release on his 1997 Riverside County conviction, to wit, March 28, 2002. Thus, the record contains substantial evidence to show that the prison prior enhancement is true.

Though it is unnecessary to our holding in this case, we note that Peoples exhibit 8 confirms that appellant and the persons charged and convicted as shown in exhibits 4, 5, 6, and 7 are one and the same person. Exhibit 8 is a certified copy of a CLETS (California Law Enforcement Telecommunications System ) rap sheet printout that shows that appellant Jose Juan Martinez has used several aliases, including the name Jose Guadalupe Barajas (exhibit 4) and the name Jose Guadalupe Garcia Barajas (exhibits 6 and 7). This rap sheet was admissible under the official records exception to the hearsay rule (Evid. Code,  1280). (People v. Martinez (2000) 22 Cal.4th 106, 119-134; People v. Dunlap (1993) 18 Cal.App.4th 1468, 1477-1480.) We reject appellants contention to the contrary.

Disposition

The judgment is affirmed.

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^*Before Harris, Acting P.J., Levy, J. and Dawson, J.

^[1]Unless otherwise specified, all further statutory references are to the Penal Code.