Opinion
C039683.
11-14-2003
THE PEOPLE, Plaintiff and Respondent, v. DARYL BARKSDALE, Defendant and Appellant.
This is the second appeal in this case. Defendant Daryl Barksdale was originally convicted of burglary and petty theft with a prior conviction. (Pen. Code, §§ 459, 666.) A jury found a prior juvenile adjudication of rape to be a prior serious felony (strike) conviction. (Pen. Code, § 667, subds. (b)-(i).) On December 28, 2000, we reversed the judgment and remanded the case to the trial court with directions to hold a posttrial Marsden hearing at which defendant could present his reasons for requesting appointment of new counsel (People v. Marsden (1970) 2 Cal.3d 118).
Following the appointment of new counsel and evidentiary proceedings, the trial court reinstated the judgment.
Defendant now argues that there was insufficient evidence that he suffered a juvenile rape "conviction," which qualified as a strike because the original court order introduced at trial was not "authenticated," and the fingerprint card that was introduced after remand was inadmissible under Penal Code section 969b.
For purposes of clarity, we note an analytical disagreement with counsel for both defendant and plaintiff. The parties argue this appeal as though the question presently before us is whether there was sufficient evidence at trial that defendant had previously been convicted of rape, as alleged. But that precise issue is not at issue on this appeal because it is one that had to be raised, if at all, as part of defendants first appeal. (People v. Senior (1995) 33 Cal.App.4th 531.) Instead the issue before us now is whether defendants attorney at trial was ineffective for failing to investigate whether defendant had been convicted in Contra Costa County as alleged. Whether there was sufficient evidence of the rape conviction bears only on the question of whether defendant was prejudiced by the alleged ineffectiveness of his first attorney when he failed to investigate into the conviction. If the evidence was, or along with the additional evidence adduced at the hearing on the motion for a new trial now is, sufficient to prove that defendant was convicted of the rape alleged in the information, necessarily he could not have been prejudiced by any alleged shortcomings in his first attorneys investigation. In any event, we disagree with defendants argument and conclude that the trial court properly denied the motion for new trial. We affirm the judgment as reinstated.
PROCEEDINGS
Before ruling on defendants motion for new trial, the trial court ordered production of the files, exhibits, and testimony in the earlier case and stated it would consider the original evidence during the postremand motion. Defendant has augmented the record with the original trial transcripts and exhibits, and we shall consider them also.
The Evidence Presented During the Trial
Defendant was charged with having suffered a prior serious conviction for rape (Pen. Code, § 261, subd. (2)) from Contra Costa County, between June 5, 1987, and May 18, 1988.
At the original trial, Deputy District Attorney Ernest Sawtelle, former supervising prosecutor at juvenile hall, testified as an expert in juvenile court documents without objection from defense counsel. Sawtelle explained that Peoples exhibit 1, dated May 18, 1988, was a Contra Costa juvenile court order committing defendant to the California Youth Authority (CYA). The order reflects a sustained offense for forcible rape (Pen. Code, § 261, subd.(2)) and a maximum commitment term of eight years. This copy of the Contra Costa County juvenile court order was certified as a correct copy by a the trial court clerk on May 18, 1998. Peoples exhibit 1 also included a cover letter, dated November 18, 1999, from the CYA Custodian of Records, referring to this order of commitment.
Peoples exhibit 2 presented at the original trial is actually two documents. The first document in exhibit 2 is a Contra Costa County juvenile court supplemental petition, filed February 10, 1988. It lists defendants prior offenses, including a violation of Penal Code section 261.2, and requests a change because the minor left his court-ordered placement without permission. That document was certified as a correct copy by a Contra Costa County clerk on September 21, 1999.
The second document in exhibit 2 that Sawtelle identified is a Contra Costa County court order that is identical to the court order in Peoples exhibit 1. He identified it as a Contra Costa County document, embossed with a seal and certified as a correct copy on July 21, 1999. However, unlike the order in Peoples exhibit 1, according to witness Sawtelle, this copy of the order was certified as a correct copy on "7.21.99" on the back of the order by a Contra Costa County clerk and has a raised embossed seal. The order lists defendants birth date as "1/25/70" and indicates a supplemental petition was filed "2/10/88." The juvenile court found this to be a "707b offense."
Before sentencing, trial counsel moved to "dismiss" the prior conviction, conceding that evidence had been adduced at trial that defendant had been sentenced to CYA for forcible rape on May 18, 1988, but arguing that there was no proof of defendants age at the time of commission of the rape. That motion was denied by the trial court and was not challenged on appeal.
On appeal, we reversed the judgment because the trial court believed that defendants Marsden motion at his sentencing hearing was untimely and refused to hear his reasons for requesting new counsel. We noted that because judgment had not been pronounced, new counsel could have made a timely motion for new trial or urged the trial court to depart from its intended judgment. (People v. Barksdale (Dec. 28, 2000, C034863) [nonpub. opn.].)
The Post Remand Proceedings
Following our remand, the trial court granted defendants Marsden motion and appointed Attorney Matthew Roberts. The court granted the motion "for a limited review to determine whether or not this rape offense occurred, and if [defendant is] the person who suffered it." The trial court noted: "So we need the original files that will show who it was, and if its Mr. Barksdale, well, thats life. If it isnt Mr. Barksdale, Im going to strike the strike." The prosecutor noted that the "burden" was on the defendant. There was no written motion for a new trial.
On October 2, 2001, the court held an evidentiary hearing. Although the defendant had the burden of proof, the prosecutor introduced two new exhibits. Peoples exhibit 1 at the hearing on remand was a fingerprint elimination card containing defendants fingerprints as obtained by Officer Cottingham in the courtroom. Peoples exhibit 2 was a fingerprint card from CYA, containing fingerprints, defendants name, and the charge of Penal Code 261. Both exhibits were admitted without objection. The trial court noted that these documents were produced by defense counsels subpoena, which was issued to the Department of Justice Custodian of Records and requested records pertaining to defendants 1988 commitment to CYA from Contra Costa County and his 1995 discharge from CYA, including fingerprint records.
Defense counsel also presented two new exhibits at the hearing on remand. Defense counsels exhibit A contained documents he had received from the Contra Costa County Probation Department and the Contra Costa County Children and Family Services; each stated that there was "no record" of the minor. Defense counsels exhibit B is 25 pages of CYA documents, including defendants 1995 discharge report, and a psychological report from 1988 that describes defendants commitment to CYA for rape in 1988.
Defense counsel argued there was insufficient evidence that defendant had a strike conviction because there were no Contra Costa County records. He also contended that CYA did not have legal custody of court documents and argued there was insufficient evidence of identity. The prosecutor reminded the trial court that it did have the original Contra Costa court order at trial. The trial court then stated: "I guess the motion for new trial is still under submission; is that it, Ms. Kennedy [prosecutor]?"
The trial court stated it was satisfied that official duties were regularly performed; that the records met the official records test of Evidence Code section 1530; and that defendant did suffer a rape conviction in 1987 or 1988, based on the Contra Costa County Superior Court records that were maintained by the CYA. It denied the motion for a new trial. Defendant filed a notice of appeal, citing the trial courts failure to grant him a new trial on the prior serious felony conviction.
DISCUSSION
Defendant now argues there was "insufficient evidence" that he suffered a juvenile rape conviction, because (1) the Contra Costa County Juvenile Court minute order was not "properly authenticated," and (2) the CYA records were not admissible "as a kind of Penal Code section 969b packet" because CYA records are not "reformatory records" within the meaning of that section. We conclude that defendants first evidentiary challenge is not supported by the record of the trial and motion for new trial. Defendants second argument is waived.
We evaluate the trial court proceedings as a motion for a new trial on the prior conviction, based on the ineffective assistance of the first trial counsel in failing to challenge the validity of the prior conviction. New trial motions may also be made on nonstatutory grounds. The motion itself need not be written and, historically, may be oral. (People v. Ah Sam (1871) 41 Cal. 645, 650-651; People v. Simon (1989) 208 Cal.App.3d 841, 847.)
Ineffective assistance of trial counsel is a nonstatutory ground for a motion for new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) A two-step review process akin to that used in reviewing a ruling on a suppression motion applies to a nonstatutory new trial motion on the ground of ineffective assistance of counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724.)
In the first step, the trial court finds the relevant facts. "[A]ll presumptions favor the trial courts exercise of its power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual inferences." (People v. Taylor, supra, 162 Cal.App.3d at p. 724.) The trial courts factual findings, express or implied, will be upheld if they are supported by substantial evidence." (Ibid.)
In the second step, the trial court decides, based on the facts found, whether defendant has demonstrated that counsels performance was deficient and that defendant suffered prejudice as a result, both being mixed questions of fact and law. (People v. Taylor, supra, 162 Cal.App.3d at pp. 724-725; see Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692].)
A trial court has broad discretion to grant or deny a motion for new trial. (People v. Seaton (2001) 26 Cal.4th 598, 693.) "`"The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."" (People v. Delgado (1993) 5 Cal.4th 312, 328; see People v. Williams (1988) 45 Cal.3d 1268, 1318.)
Defendants first argument is directed to the trial courts factual finding that defendant did have a qualifying strike conviction. Defendant argues that the Contra Costa County juvenile court order was not properly certified as a correct copy or authenticated because it came from the CYA. This order is a commitment order. Welfare and Institutions Code section 1740 provides: "When a court commits a person to the Authority such court shall at once forward to the Authority a certified copy of the order of commitment."
We assume defendant is solely contesting the factual finding made by the trial court at the motion for new trial in order to determine whether trial counsel was ineffective for failing to object to these documents, because defense counsel did not raise this argument in the first appeal. But we need not further discuss defendants contention that the Contra Costa County court records in the possession of CYA are inadmissible, because there is a second copy of the same order in the augmented record that was admitted at trial, certified as a correct copy by a Contra Costa County clerk, and authenticated with a court seal. Two copies of the commitment order were admitted at the original trial — one certified by CYA on November 18, 1999, as a copy of a document from their files, which copy had been certified by Contra Costa County on May 18, 1988, and one certified on September 21, 1999, by a Contra Costa County clerk before the original trial and after defendants release from the CYA.
We conclude that the copy of the commitment order in Peoples exhibit 2, which was authenticated with a raised seal and court certification, is not subject to any evidentiary challenge. Deputy District Attorney Sawtelle described the raised court seal. He pointed to the 1999 Contra Costa County certification on the back of the document. That certification reads: "This document is a correct copy of the original on file in this office. [¶] Attest: SEP 21 1999 [¶] K. Torre, Clerk of the Court, Superior Court of California, County of Contra Costa," and is signed by a deputy clerk.
Defendant further argues that there "is no original of the minute order within the Contra Costa County Juvenile Court files, as trial counsels search discovered." Defendants evidence does not support this argument. Defendants exhibits, memoranda from the probation department and from family services in Contra Costa County, which stated that those agencies had no record of defendant, do not cast doubt on the validity of the juvenile courts commitment order in Peoples exhibit 2. These are different agencies.
Moreover, there is no question defendant was in the CYA for a number of years because he himself presented his CYA records at the motion for new trial. The CYA commitment order includes defendants aggregate juvenile offenses. The only listed offense permitting an eight-year term is rape. The order specifically states that a Welfare and Institutions Code section 707, subdivision (b) finding had been made. None of the listed offenses — except for rape — is listed in Welfare and Institutions Code section 707, subdivision (b).
Accordingly, any objection by trial counsel to the admission of the certified correct copy of the Contra Costa County order in Peoples exhibit 2 would not have been successful. Trial counsel was not ineffective for failing to make a futile objection.
Defendant also argues that the fingerprint comparison presented at the motion for new trial was invalid because the CYA fingerprint card was not "part of a § 969b packet." Defendant argues that CYA is not a "reformatory" under Penal Code section 969b; therefore, its records are not prima facie evidence of conviction or identity as required by Penal Code section 969b.
We need not reach this argument because it was not raised below and is waived. Defendant did not object to the Peoples proffer of a CYA fingerprint card and had actually subpoenaed it himself. Further, the fingerprint card was not offered as part of a "packet" under Penal Code section 969b to prove a prior; it was offered, without objection, at a posttrial motion where defendant had the burden of proof. Finally, there could have been no prejudice to defendant, because his own evidence conceded his identity as the person in CYA custody for many years.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J. and NICHOLSON, J.