Opinion
A128869
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. DUANE JAMES BOWIE, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. No. CR1000641)
Defendant Duane James Bowie, Jr. appeals a judgment entered upon a jury verdict finding him guilty of vehicle theft (Veil. Code, § 10851, subd. (a)); driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)); driving with a blood alcohol level of 0.08 percent of more (Veh. Code, § 23152, subd. (b)); and resisting or obstructing a peace officer (Pen. Code, § 148, (subd. (a)(1)). The trial court found true six prior prison term allegations. (§ 667.5, subd. (b).) Defendant contends the evidence is insufficient to show he suffered all of the prior prison terms. We affirm.
All undesignated statutory references are to the Penal Code.
The facts underlying the convictions are not pertinent to the issues on appeal, and we will not recite them here.
I. BACKGROUND
Defendant waived his right to a jury trial of the prior prison term allegations, and the trial court heard the matter.
As amended at the hearing, the first amended information alleged six prior prison terms: (1) Humboldt County case No. CR024041S, a violation of Vehicle Code section 10851, subdivision (a), with a conviction date of December 2, 2002; (2) Humboldt County case No. CR071518S, a violation of section 12316, subdivision (b), with a conviction date of June 4, 2007; (3) Humboldt County case No. CR992479S, a violation of Health and Safety Code section 11377, subdivision (a), with a conviction date of August 18, 1999; (4) Humboldt County case No. E92447M, a violation of section 666, with a conviction date of November 15, 1995; (5) Humboldt County case No. E89610M, a violation of section 496, subdivision (a), with a conviction date of February 1, 1995; and (6) Humboldt County case No. CR004812S, a violation of section 496, subdivision (a), with a conviction date of November 1, 2000.
The trial court received into evidence a packet of defendant's records sent by the California Department of Corrections and Rehabilitation (CDC), which was certified pursuant to section 969b (the 969b packet). The trial court found all six prior prison term allegations true beyond a reasonable doubt.
Section 969b authorizes the admission of "the records or copies of records of any state penitentiary, reformatory, county jail or 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," as prima facie evidence that a person has suffered a prior conviction or term of imprisonment.
II. DISCUSSION
Defendant contends the evidence is insufficient to show he suffered four of the six prior prison terms. He notes correctly that the 969b packet indicated that it was incomplete because the CDC had no fingerprint cards for four of the six cases, and contends that there was therefore insufficient evidence of his identity. He also argues that the 969b packet and a printout from the California Law Enforcement Telecommunications System (CLETS) admitted at the preliminary hearing were inconsistent in whether fingerprint evidence was available, and that this "contradictory" evidence undermines the trial court's findings.
" 'When the accused challenges a prior conviction, the state bears the burden of proving it beyond a reasonable doubt. [Citations.]' [Citation.] The state may meet this burden, however, 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 [citations]; or certified copies of writings in the custody of a public entity. [Citations.]." (People v. Brucker (1983) 148 Cal.App.3d 230, 241; see also People v. Lizarraga (1974) 43 Cal.App.3d 815, 820; § 969b.)
Where the question is the identity of the defendant as the person who suffered the prior convictions, the court may look to the similarity of names, as well as other factors, to decide the issue. Thus, in People v. Garcia (1970) 4 Cal.App.3d 904, 911-912, evidence of similarity of names, the correlation of the age of the defendant in the case at hand and the prior case, and the identity of the crimes committed supported a finding that the defendant had suffered the prior conviction. (See also People v. Hill (1967) 67 Cal.2d 105, 121 [similarity of names and fingerprints established prima facie case]; People v. Sberno (1937) 22 Cal.App.2d 392, 401-402 [uncommon surname, coupled with fact that defendant was resident of Chicago judicial district of prior conviction, similarity of earlier crime to crime at issue, and admission defendant had " 'done time' " sufficient].) Moreover, if the defendant's name is sufficiently unusual, the name alone may be sufficient to support a finding of identity of person, even in the absence of photographic or fingerprint evidence. (People v. Sarnblad (1972) 26 Cal.App.3d 801, 805-806; People v. Luckett (1969) 1 Cal.App.3d 248, 253 [name Samuel Luckett sufficiently uncommon that finding of identity supported by inference based on identity of name]; People v. Mendoza (1986) 183 Cal.App.3d 390, 401 ["[I]n the absence of countervailing evidence, . . . identity of person may be presumed, or inferred, from identity of name."].)
The 969b packet fully meets these standards. It contained abstracts of judgment for all six prior cases. Each one included defendant's full name, Duane James Bowie, Jr., and ordered him remanded forthwith into the custody of the sheriff for delivery to a CDC reception center. Four of them (allegations 1, 2, 3, and 6) included his date of birth. The packet included fingerprint cards for the other two cases (allegations 4 and 5), and a picture of defendant with his CDC number and date of birth. It also included a chronological history of defendant's commitments, with his CDC number, and all six cases are reflected in the chronological history. The name Duane James Bowie, Jr. appears to be uncommon enough that in itself it would support a finding of identity. When we consider in addition that the abstracts of judgment of all four challenged cases include defendant's date of birth, that all convictions took place in Humboldt County, and that all convictions were reflected in the CDC's chronological history which included defendant's CDC number, there can be no doubt that the evidence supports the trial court's findings.
We are not persuaded otherwise by defendant's reliance on People v. Martinez (2000) 22 Cal.4th 106 (Martinez). Our Supreme Court there considered the admissibility under the official records exception to the hearsay rule (Evid. Code, § 1280) of uncertified CLETS printouts as evidence that a defendant had served prior prison terms, and concluded that on the record before it, the trial court did not err in admitting the evidence. (Martinez, supra, 22 Cal.4th at pp. 111-112.) Among the factors the court considered in connection with the trustworthiness prong of the official records exception was evidence that the Department of Justice would add information to the CLETS system about an incident in a person's criminal history only after using fingerprints to verify the person's identity. (Id. at pp. 120-121, 134.) Nothing in Martinez, however, addresses the reliability of prison records—which section 969b provides are admissible to prove prior prison terms—and nothing suggests that records properly admitted under section 969b must include fingerprint evidence in order to show identity. As Martinez notes, "[c]ases are not authority for propositions they do not consider. [Citation.]" (Id. at p. 118.)
The court also discussed the legislative history of a 1997 enactment that authorized county child welfare agencies to obtain criminal records through CLETS only until a fingerprint identification system become available. (Former Health & Saf. Code, § 1522.06.) The legislative history indicated that absent fingerprint records, name checks, even with social security numbers or driver's license numbers, result in an error rate of around 10 percent. (Martinez, supra, 22 Cal.4th at p. 133.)
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Defendant also argues that the CLETS records refer to only five of the prior incarcerations, and that it appears that fingerprints were not available to support all of the cases referred to in the CLETS printout. He also suggests the trial court may have been using the CLETS printout in making its determination. We have reviewed the transcript of the trial on the prior prison term allegations, and are satisfied the trial court had the section 969b packet before it. And, as we have explained, we are also satisfied that the 969b packet supports the trial court's findings.
III. DISPOSITION
The judgment is affirmed.
RIVERA, J. We concur: RUVOLO, P.J. REARDON, J.