Opinion
H025379.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. JAVIER HERNANDEZ, Defendant and Appellant.
Defendant Javier Hernandez waived his right to a jury trial on the charge that he had possessed a controlled substance in prison (Pen. Code, § 4573.6) and on allegations that he had four prior strike convictions for first degree burglary (Pen. Code, § 1170.12, subd. (c)(2)(A)). In exchange for his waiver, the prosecution agreed that, "if [defendant] is found guilty it would be the lower term of two years doubled by one strike for a maximum of four years exposure." After a court trial, defendant was found guilty of possession of a controlled substance in prison. The trial court found that "there are three first degree burglaries proven by the [Penal Code section] 969B packet" and that, therefore, "under the term of [the] plea bargain . . . there is at least one previous felony strike conviction." In accordance with the waiver agreement, the trial court sentenced defendant to state prison for the low term of two years doubled by one strike for a total of four years with this sentence to be served consecutively to the sentence defendant currently was serving.
On appeal defendant contends the record on appeal is inadequate for this court to conduct a meaningful appellate review. He also contends the evidence is insufficient to sustain a finding that he suffered a prior strike conviction. In a concomitant claim, defendant claims his trial counsel provided ineffective assistance by not objecting to the introduction of hearsay evidence contained in a computer printout and a probation officers report that were part of the section 969b packet.
I. Facts
On June 22, 2000, defendant was an inmate at Salinas Valley State Prison. He and another inmate were waiting in line to get their prescribed medication when Officer Stevenson pulled defendant out of line because another officer believed defendant was involved in "suspicious activity." During a pat-down search, Stevenson noticed that defendant "kept pulling . . . his left hand into the sleeve of his jacket." After defendant was ordered to open his clenched left hand, he tried to move his left hand towards his mouth. As Stevenson pulled defendants head back, defendant made a throwing motion with his left hand. Stevenson then saw defendant drop an object on the ground. Officer Rincon picked up the object defendant had dropped. It was stipulated that analysis of that object revealed that it contained a "usable quantity" (".73 grams gross") of heroin.
II. Discussion
A. Adequacy of the Record
In exchange for the jury waiver, the prosecution agreed that "if [defendant] is found guilty it would be the lower term of two years doubled by one strike for a maximum of four years exposure." (Italics added.) After the court trial, the court found "the defendant guilty as charged of possessing heroin in the state prison, [and found] that there are three first degree burglaries proven by the [section] 969B packet. There are three separate certified abstracts, one for first degree burglary in 1995; one in 1990 and one in 1990 all independent. So under the term of [the] plea bargain the Court does find there is at least one previous felony strike conviction." (Italics added.)
Defendant contends the record is inadequate for this court to conduct a meaningful review of his sentence. Specifically, he argues that the record is inadequate in that the trial court did not identify the prior strike conviction upon which it relied and that he was prejudiced by the courts failure to identify the prior because he should only have to challenge the viability of one prior strike conviction.
A defendant is entitled to a record that is adequate to permit meaningful appellate review. (People v. Howard (1992) 1 Cal.4th 1132, 1165.) We independently determine whether the record "is adequate to allow the appeal to proceed meaningfully." (People v. Osband (1996) 13 Cal.4th 622, 666.) "However, it is defendants burden to show that deficiencies in the record are prejudicial." (People v. Howard, supra, 1 Cal.4th at p. 1165.)
We are not persuaded by defendants claim that he was prejudiced because he "should only have to challenge the viability of one prior strike conviction because only one was used to enhance his sentence." The trial court found three prior strike convictions had been proven, each of which, if supported by substantial evidence, would be sufficient to enhance the sentence pursuant to the waiver agreement. The record is adequate for meaningful review because the court specified the three convictions that were the possible basis of the single strike enhancement; thus, if any one of those three strike findings can be sustained on appeal, defendants sentence was appropriate. Defendant has an adequate basis to challenge the trial courts finding that three prior strike convictions had been proven and its decision to double defendants sentence in accordance with the waiver agreement on the basis that at least one strike had been proven. We are convinced the lack of a reference to the specific conviction used to double the sentence is not prejudicial in this case.
B. Sufficiency of Evidence to Support One Strike Conviction
Defendant next contends there was insufficient evidence to prove beyond a reasonable doubt that he suffered any of the alleged prior strike convictions. The People correctly concede there was insufficient evidence of a strike conviction for first degree burglary in 1995 but contend there was sufficient evidence for the trial court to find that defendant suffered the two alleged 1990 prior strike convictions.
The trial court erroneously characterized the 1995 conviction as a first degree burglary. The 1995 abstract in defendants Los Angeles Case Number BA108726 reveals that defendant pleaded guilty to a second degree burglary.
We "review the record in the light most favorable to the judgment to determine whether substantial evidence supports the factfinders conclusion, i.e., whether a reasonable trier of fact could have found that the prosecution had sustained its burden of proving the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Jones (1999) 75 Cal.App.4th 616, 631.) In reviewing the record, we "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.)
In order to prove defendants prior "strike" convictions, the prosecution submitted to the trial court what is referred to as a section 969b prison packet. In this case, the 969b packet contained the copies of records from Salinas Valley State Prison in which defendant had been imprisoned, and the copies of those records were certified pursuant to section 969b by the official custodial of such records, in this case, Correctional Case Records Manager Jeannette Pedraza. The section 969b packet of prison records contained the following relevant items: a fax request for defendants multi-state criminal history record which listed defendants name as "Hernandez, Javier" and defendants two California Department of Corrections (CDC) numbers, K14990 and E55345; defendants multi-state criminal history record that was run using defendants California Department of Justice CII number (A07652851) and his two CDC numbers; defendants fingerprint card; the chronological prison history of defendant from July 17, 1996 through February 5, 2000; the probation officers report related to a 1995 second degree burglary; a 1995 abstract of judgment for a 1995 second degree burglary; a 1991 abstract of judgment for two 1990 first degree burglaries; and a 1990 abstract of judgment for a 1990 first degree burglary.
In the present case, defendant was charged and convicted under the name "Javier Hernandez." With regard to the two abstracts of the 1990 convictions, one records the conviction of "Arturo Gomez Savala" and the other notes the conviction of "Jose Gutierrez Perez a.k.a. Gustava Jimenez Vargas." Defendant claims the "only information linking the names on the abstracts of conviction to [defendant] are the lists of aliases on an unlabelled computer printout and in a probation officers report from 1995." He then argues the evidence contained on those two documents constituted inadmissible hearsay and that, therefore, "there was no substantial credible evidence introduced that identified [him] as the person who suffered the prior strike convictions contained in the section 969b packet."
Records or copies of records of any state penitentiary may be introduced as evidence. (People v. Matthews (1991) 229 Cal.App.3d 930, 937; Pen. Code, § 969b.) Section 969b creates a special official records hearsay exception applicable to the proof of prior convictions in criminal cases. It permits certified copies of specified state penitentiary records "`to be used for the truth of the matter asserted in those records, . . . . [Citation.]" (People v. Martinez (2000) 22 Cal.4th 106, 116; see also People v. Matthews, supra, 229 Cal.App.3d at p. 937.) Use of such records is the "common method" of proving an offenders prior felony convictions in California. (3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Punishment for Crime, § 1528, p. 1822.)
In this case, even without relying upon the challenged computer printout or the challenged 1995 probation report, we conclude there is substantial evidence in the remaining material in the section 969b packet to link defendant to the relevant abstracts in the section 969b packet, namely, the 1990 abstract of conviction for first degree burglary in Los Angeles County case BA012583 and the 1990 abstract of conviction for first degree burglary in Los Angeles County case ECR3216.
Defendants chronological history, which lists his name as "Hernandez, Javier" and his CDC number as "K14990," shows that, when defendant was received into Salinas Valley State Prison ("SVSP"), he already was in custody for his "LA Co Case # BA108726" and in his "LA Co Case # PA020449" and that he had been ordered to pay restitution in both cases.
Defendants fingerprint card, which also lists his name as "Hernandez, Javier," and his CDC number as "K14990," reveals that defendant uses the alias "Arturo Savala" and that his offenses include case numbers "BA108726" and "PA020449."
The 1995 abstract of conviction for second degree burglary in Los Angeles County case BA108726 refers to the defendant as "HERNANDEZ, JAVIER AKA: SAVALA, ARTURO."
In his reply brief, defendant claims the alias on the 1995 abstract of judgment is "hearsay" that lacks indications of trustworthiness. However, the trustworthiness of the alias on the 1995 abstract is confirmed by the inclusion of that same alias on defendants fingerprint card in the 969b packet.
The 1990 abstract of conviction for first degree burglary in the Los Angeles County case BA012583 refers to the defendant as "SAVALA, ARTURO GOMEZ." This abstract indicates that defendant Savala received 90 days credit for time spent in custody.
The 1990 abstract of conviction for first degree burglary in the Los Angeles County case ECR3216 refers to the defendant as "JOSE GUTIERREZ PEREZ AKA: GUSTAVE JIMINEZ VARGAS." This abstract indicates that the defendant also has Los Angeles Case Number "BA12583 [sic]" for which he received 90 days credit for time spent in custody.
The above documents reveal that the defendant in the present case is the same individual who was convicted in 1990 of first degree burglary in Los Angeles County case numbers BA012583 and ECR3216. Accordingly, we conclude there was substantial credible evidence introduced that identified defendant as the person who suffered the 1990 prior strike convictions contained in the section 969b packet.
C. Ineffective Assistance of Counsel
Defendant claims his trial counsel provided ineffective assistance by failing to object to hearsay evidence in the section 969b packet. Specifically, defendant contends his trial counsel should have objected to the introduction of the "unlabelled computer printout" and "the 1995 probation officers report" that contained a list of defendants aliases.
"A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsels failings. [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 440.) "[A] court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
We already have determined that, even without the challenged 1995 probation report and the multi-state record in the computer printout, the admissible documents in the section 969b packet link defendant to the qualifying 1990 convictions. Accordingly, defendants ineffective assistance claim is not well taken. (People v. Price , supra, 1 Cal.4th at p. 440.)
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Wunderlich, J.