Opinion
B186091
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. JOHNNIE CRAWFORD, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin, and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Johnnie Bernie Crawford, appeals from his conviction for felony vandalism (Pen. Code, § 594, subd. (a)) and the trial courts finding that he was previously convicted of a serious felony and served three prior prison terms. (§§ 667, subd. (b)-(i), 667.5, subd. (b), 1170.12.) Defendant argues the trial court improperly admitted hearsay testimony and the prosecutor failed to prove one of the prior prison term enhancements. Defendant further requests we independently review the in camera proceedings conducted in the trial court concerning disclosure of peace officer personnel records. We reverse one of the three section 667.5, subdivision (b) enhancements and affirm the judgment in all other respects.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On April 13, 2005, Stephen Meech, a designer and salesman closed the Minotti store at 7 p.m. At that time, the store was in pristine condition. The Minotti store sells furniture and electronic items. When Mr. Meech returned at approximately 9:45 a.m. on April 14, 2005, he noticed that one of the large glass panels of the store window had been damaged. At the time of trial, the glass had not been replaced. Mary Ta owned the Minotti store in April 2005. Ms. Ta had not replaced the damaged glass panel at the time of trial because it was too expensive. The window panel measured approximately 11 feet high by 4 and one-half feet wide. The window consisted of two panels. The window could not be repaired by sanding. Both panels would need replacement. The glass panel is embedded into the frame of the windows. As a result, the replacement would also be disruptive of her business operations. A glass company estimated the replacement cost to be $10,000.
At approximately 2:15 a.m. on April 14, 2005, Deputy Sheriff Howard Peltz heard a loud banging noise as he drove in his police car and approached a business on Beverly Boulevard. Deputy Peltz believed someone had thrown something against the side of a building. An alarm sounded immediately thereafter. As Deputy Peltz drove close to the building, he saw a gray car parked directly in front of the business. Defendant, who was seated in the drivers seat of the car, drove away as soon as Deputy Peltz approached. Deputy Peltz followed the car and stopped it approximately one block away. Deputy Peltz saw a piece of concrete in the rear seat of defendants car. Deputy Peltz requested assistance from other deputies.
Deputy Larry Alva drove to the Minotti store. Deputy Alva saw defendant in the rear seat of Deputy Peltzs patrol car. Deputy Alva saw the concrete slab in the rear seat of defendants car. Deputy Alva saw a concrete slab lying on the sidewalk within inches of the Minotti store. Deputy Alva saw a mark on one of the windows of the Minotti store that could have been caused by the concrete slab. Another piece of concrete was in a planter near the door of the Minotti store. Deputy Alva had responded to a previous call at the John Varvatos store, where a piece of cement was also used to break a window. The pieces of concrete Deputy Alva saw near the two stores were similar in color, composition, and makeup. Deputy Alva collected the pieces of concrete, took them to the sheriffs station, and photographed them. When Deputy Alva placed the piece of concrete from the John Varvatos store next to the one from the Minotti store and the one from the rear seat of defendants car, he noticed that they appeared to fit together. The largest piece of concrete found at the Minotti store was approximately 2 and one-half feet long by 1 foot wide and weighed 30 to 35 pounds. The smaller slab found in defendants car was about 1 and one-half feet long by 1 foot wide and weighed 15 to 20 pounds.
First, defendant argues that the trial court improperly permitted Ms. Ta to testify regarding the cost of replacing the damaged window at the Minotti store because it was based on hearsay evidence. Evidence Code section 1200 defines hearsay as: "(a) `Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶] (b) Except as provided by law, hearsay evidence is inadmissible." In reviewing a trial courts ruling on the admissibility of hearsay evidence, we apply generally the deferential abuse of discretion standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 725; People v. Phillips (2000) 22 Cal.4th 226, 235-236.) Here, Ms. Ta testified: "So [the contractor] said its about $5,000 to replace that one side, which would affect the other side. So, therefore, I would have to replace the whole thing. $10,000 is just not feasible." Section 594, subdivision (b)(1) provides in pertinent part: "If the amount of defacement, damage, or destruction is four hundred dollars ($ 400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year . . . . " Defendant argues that without this testimony, he would not have been found guilty of felony vandalism. We agree with defendant that this amounted to inadmissible hearsay. However, we find the error harmless. (People v. Sakarias (2000) 22 Cal.4th 596, 630; People v. Watson (1956) 46 Cal.2d 818, 836.) Ms. Ta testified from her own knowledge as owner of the store that the windows were quite large. Ms. Ta further testified that the windows involved double panes that would require replacement and would disrupt her business operations. Ms. Ta had not replaced the windows because it would be "too expensive." Our Supreme Court has held: "[M]ere speculation cannot support a conviction. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Reyes (1974) 12 Cal.3d 486, 500.) However, it has also long been held that jurors can rely upon their common knowledge and experience in estimating the weight of the evidence and in assessing damages. (Ferrari v. Mambretti (1943) 58 Cal.App.2d 318, 327 ["`If the trier of the facts possesses the common knowledge of the value of [] services, their reasonable value may be determined without the aid of opinion testimony."]; Lundberg v. Katz (1941) 44 Cal.App.2d 38, 46; Kawamura v. Honek (1932) 127 Cal.App. 509, 511.) Here, it would be reasonable for the jurors to presume, based on their own common knowledge and experience, and the circumstantial evidence of the size of the windows, inconvenience to the operation of the store and the photos in evidence that the cost of replacing the windows would far exceed the $400 minimum for felony vandalism. Therefore, it is not reasonably probable that defendant would have had a more favorable result absent the testimony of the estimated cost of replacing the windows.
Second, defendant requests that we review the sealed documents and transcripts prepared in connection with a motion to compel disclosure of peace officer personnel records. (Evid. Code, § 1045, subd. (b); People v. Mooc (2001) 26 Cal.4th 1216, 1232; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535-540.) After augmenting the record, we have reviewed the documents and the transcripts to determine if the trial court abused its discretion in denying additional disclosure. No abuse of discretion occurred with respect to the trial courts refusal to disclose additional information regarding the personnel files of Deputies Alva, Peltz, and Arthur Penate. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Samayoa (1997) 15 Cal.4th 795, 827.)
Third, defendant argues there was insufficient evidence to support the trial courts finding that he served a prison term in case No. SA032985 for purposes of a section 667.5, subdivision (b) prior prison term enhancement. The California Supreme Court has held: "Imposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]" People v. Tenner (1993) 6 Cal.4th 559, 563; People v. Elmore (1990) 225 Cal.App.3d 953, 956-957.) In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576; see also People v. Gurule (2002) 28 Cal.4th 557, 630.) Our colleagues in Division Six of this appellate district have held: "[T]he People may satisfy their burden of proving a prior conviction by introducing a certified copy of a prison record. [Citation.]" (People v. Ruiz (1999) 69 Cal.App.4th 1085, 1090, fn. 2; § 969b.) In addition, the Courts of Appeal have held: "A trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction and served a prison term. [Citation.]" (People v. Williams (1996) 50 Cal.App.4th 1405, 1413; People v. Haney (1994) 26 Cal.App.4th 472, 475.)
Here, the evidence presented in support of the 1999 prior prison term allegation in case No. SA032985 included a fingerprint card, which was supplied by the California Department of Justice and a letter from the Department of Corrections. Both documents bore a date close in time to the January 11, 1999 conviction date alleged in the amended information for case No. SA032985. However, neither document referenced the case number of offense in question. Moreover, the fingerprint card made no reference whatsoever to a conviction, crime, or prison term. The letter from the Department of Corrections merely indicated that defendants sentence "should be 68 months" but did not relate the sentence allegedly imposed in case No. SA032985. No properly qualified opinion testimony was presented regarding the documents. Rather, a fingerprint examiner compared defendants fingerprints to those in the certified record and found them to match. Thereafter, the prosecutor was asked to "walk" the trial court through the evidence. The prosecutor explained which pages of the Department of Justice documents related to the enhancement allegations. The prosecution did not present any abstracts of judgment, prison chronological entries, or other documents that could have served to establish either defendants alleged conviction or prison term served relative to case No. SA032985. Although the probation officers report related to this case listed case No. SA032985 in defendants chronological arrest history, neither the court nor the prosecutor indicated that they relied upon that report during the prior prison term allegations. Moreover, our colleagues in the Court of Appeal for the Third Appellate District have held: "`Courts may not take judicial notice of . . . probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof. [Citation.]" (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145, quoting Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) Our Supreme Court in People v. Tenner, supra, 6 Cal.4th at page 566, held: "Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt. [Citations.]" The prosecutor failed to do so in this case. We therefore reverse the trial courts true finding that defendant served a prior prison term in case No. SA032985. Double jeopardy does not bar retrial of a prior conviction or prison term allegation. (Monge v. California (1998) 524 U.S. 721, 734; People v. Fielder (2004) 114 Cal.App.4th 1221, 1226, 1234.) Upon issuance of the remittitur, the prosecution may retry the prior prison term allegation at issue if it wishes.
The one-year section 667.5, subdivision (b) enhancement imposed as to case No. SA032985 is reversed. The cause is remanded for a limited retrial on the prior prison term allegation in case No. SA032985. The judgment is affirmed in all other respects.
We concur:
ARMSTRONG, J.
KRIEGLER, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.