PEOPLE v. MATTHEWS Docket No. A046766.
229 Cal.App.3d 930 (1991)
280 Cal. Rptr. 134
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE LEWIS MATTHEWS, Defendant and Appellant.
Court of Appeals of California, First District, Division One.
April 15, 1991.
Terrance L. Matthews, in pro. per., Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, Peter R. Silten, Chief Deputy State Public Defender, and Louis Marinus Wijsen, Deputy State Public Defender, for Defendant and Appellant.
John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Assistant
Attorney General, Morris Beatus, Herbert F. Wilkinson, Matthew P. Boyle and Ann Grogan, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.
Appellant was convicted of attempted robbery (Pen. Code, §§ 212.5, subd. (b), 664),
John Finn, who was then working at the next teller's window, asked appellant if he could help. Appellant replied: "Come on, give me the money." Fearing appellant might shoot, Finn stepped back behind a partition between the tellers' windows and told appellant he did not have any keys.
Charles Lamb, bank manager, was summoned to the scene. In response to Lamb's query, "Can I help you, sir?", appellant said, "I want the money," a demand he repeated several times, coupled with a threat to shoot Lamb. When Lamb also denied having keys, appellant finally ceased his demands for money and left the bank. While Lamb contacted the police, Finn pursued appellant briefly before losing sight of him.
San Francisco Police Officers Vellone and Ludlow received a report of an attempted robbery while they were on patrol nearby in an unmarked car. They observed appellant attempting to enter an apartment building shortly after hearing the police broadcast which included a description of the bank robber. Appellant matched the description and was apprehended after a scuffle which resulted in damage or loss to several of Officer Vellone's teeth. After being advised of his Miranda rights at the police station, appellant denied being near the bank and told officers that his name was Charles Murphy.
Appellant testified that he entered the bank to obtain money, but denied simulating possession of a gun or threatening bank employees. After his requests for money were denied, he left the bank. He proceeded to his sister's apartment complex, and was ringing the bell when two men approached. His response was to run until he saw his pursuers draw guns,
The arresting officers testified that, upon contacting appellant, they identified themselves as police officers. Appellant was impeached with three prior convictions.
Appellant was also charged with commission of five prior serious felonies (§§ 667 and 1192.7) and conviction of five felonies for which he had served prison terms (§ 667.5, subd. (b)). To prove a prior conviction for robbery dated April 24, 1984, the prosecution submitted the following documents: 1) a certified copy of a San Francisco Superior Court record which indicates that "Carl Tyrone Matthews" was convicted of robbery in case number 112983 on April 24, 1984, with sentence imposed on May 22, 1984 (exhibit 14); 2) a computer printout labeled "San Francisco Police Department Criminal History Record" for "Terry Matthews," showing an arrest for robbery on January 25, 1984, and sentencing for that offense on May 22, 1984; 3) an unlabeled computer printout with the name "Terry Matthews," among other aliases, listed at the top; and 4) a fingerprint card indicating an arrest of Terry Matthews on January 25, 1984. Over appellant's hearsay objection, exhibit 14 was properly admitted into evidence as an official record of the court. Exhibits 16 and 17 were admitted over hearsay and lack of foundation objections as business records, and are in dispute in this appeal.
"A. Yes, it is.
"Q. And is that ... an institution or is that a business of which you are a custodian of records in your official capacity?
"Q. Are the writings entered in the records contained in the I.D. Jacket, are they entered on the paper soon in time to the actual condition or event they are meant to memorialize or record?
"A. Yes they are.
"Q. And are you familiar, sir, with the manner in which information is gathered?
"Q. For the purpose of entering it and keeping it and in the jacket of a particular person, are you familiar with the mode of preparation?
The local and state rap sheets were then admitted as business records, followed by White's opinion that the notation "01/25/84 CAPDSAN FRANCISCO 326095, 01:211 PC-Robbery [¶] 05-22-84 CASCSAN FRANCISCO CO 112983 01:211 PC-ROBBERY [¶] [*]DISPO: CONVICTED-PROBATION" referred to an arrest date of January 25, 1984, in case number 112983, which matched the case number on exhibit 14, showing a conviction of Carl Tyrone Matthews for robbery on April 24, 1984.
The prosecutor also referred White to a fingerprint card, marked as exhibit 18, which White identified as "an original ten print card of [appellant] reflecting certain dates upon which he was processed in this building."
The court found that appellant had been twice convicted of a "serious" felony (robbery), and that appellant had been previously convicted of a felony (sale of narcotics) that resulted in a prior prison term. Appellant was sentenced to the upper term of three years for the attempted robbery, to consecutive five-year terms for each of the two serious felonies, and to an additional consecutive one-year term for the narcotics conviction that had resulted in a prior prison term, for a total of fourteen years.
Our high court has declared that the trier of fact may "look to the entire record of the conviction to determine the substance of a prior foreign conviction." (People v. Guerrero (1988) 44 Cal.3d 343, 355 [243 Cal.Rptr. 688, 748 P.2d 1150]; see also People v. Goodner (1990) 226 Cal.App.3d 609, 614 [276 Cal.Rptr. 542]; People v. Garcia (1989) 216 Cal.App.3d 233, 236 [264 Cal.Rptr. 662].) "[T]he `entire record of conviction' includes all relevant documents in the court file of the prior conviction." (People v. Castellanos (1990) 219 Cal.App.3d 1163, 1172 [269 Cal.Rptr. 93].) The court in Guerrero did not resolve which items are included within the entire "record of conviction ... and for what purpose or whether on the peculiar facts of an individual case the application of the rule set forth herein might violate the constitutional rights of a criminal defendant." (Guerrero, supra, 44 Cal.3d at p. 356, fn. 1; People v. Johnson (1989) 208 Cal.App.3d 19, 27 [256 Cal.Rptr. 16]; People v. Smith (1988) 206 Cal.App.3d 340, 343 [253 Cal.Rptr. 522].)
According to Evidence Code section 1530, subdivisions (a)(1) and (2), a purported copy of a writing of a public entity "is prima facie evidence of the existence and content of such writing" if the copy purports to be published by the authority of the public entity "and the copy is attested or certified as a correct copy of the writing ... by a public employee, or a deputy of a public employee, having the legal custody of the writing...." Evidence Code section 1531 further requires that "whenever a copy of a writing is attested or certified, the attestation or certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be."
The People contend that the rap sheets qualify for admission under the business records exception to the hearsay rule, codified in Evidence Code section 1271, which provides that a writing is not made inadmissible by the hearsay rule if it was "`... made in the regular course of a business; [¶] ... at or near the time of the act, condition or event; [¶] (c) the custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.'" (People v. Maki (1985) 39 Cal.3d 707, 711 [217 Cal.Rptr. 676, 704 P.2d 743]; see also People v. Ferguson, supra, 129 Cal.App.3d 1014, 1024; People v. Williams (1973) 36 Cal.App.3d 262, 275 [111 Cal.Rptr. 378].)
"The trial judge is invested with wide discretion in determining whether a proper foundation has been laid for the admission of business records under Evidence Code section 1271. (Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 784 [142 Cal.Rptr. 1]; People v. Dorsey (1974) 43 Cal.App.3d 953, 961 [118 Cal.Rptr. 362]; Exclusive Florists, Inc. v. Kahn (1971) 17 Cal.App.3d 711, 715 [95 Cal.Rptr. 325].) The exercise of that discretion will not be disturbed on appeal absent a showing of abuse. (Exclusive Florists, supra, at p. 716.)" (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1450 [232 Cal.Rptr. 471].)
And in any event, without the necessary certification to admit the rap sheets as prison records under section 969b, we cannot depart from the rule that, other than certified prison records, only the "record of conviction" is admissible to prove a prior conviction. (People v. Guerrero, supra, 44 Cal.3d 343, 355; People v. Rhoden, supra, 216 Cal.App.3d 1242, 1257.)
Without the rap sheets, no evidence links the name "Carl Tyrone Matthews" listed in the certified court record (exhibit 14) as the person convicted of robbery on April 24, 1984, in case number 112983, with appellant Terrance Lewis Matthews. A fingerprint card for "Matthews, Terry" (exhibit 18) states an arrest date of January 25, 1984, but only the corresponding arrest date on the San Francisco Police Department rap sheet for "Terry Matthews" proves that appellant suffered a conviction of robbery on April 24, 1984. Thus, admission of the rap sheets was prejudicial to appellant. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) The remaining evidence is insufficient to prove beyond a reasonable doubt that appellant was convicted of robbery on April 24, 1984. (People v. Morton (1953) 41 Cal.2d 536, 540-541 [261 P.2d 523]; People v. Young (1987) 192 Cal.App.3d 812, 818 [237 Cal.Rptr. 703]; People v. Cuevas, supra, 250 Cal.App.2d 901, 909.) Accordingly, we will vacate the five-year enhancement for the prior robbery conviction. (People v. Brookins (1989) 215 Cal.App.3d 1297, 1309 [264 Cal.Rptr. 240].)
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The judgment is modified by striking the enhancement for the prior conviction of robbery in 1984; in all other respects the judgment is affirmed.
Stein, J., and Dossee, J., concurred.
A petition for a rehearing was denied May 15, 1991.
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