PEOPLE v. ISAIS

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Joe ISAIS, Defendant and Appellant.

No. H013166.

Decided: November 16, 1995

Rita L. Swenor by Appointment of the Sixth District Appellate Program, Sanoma, for Defendant/Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, Stan M. Helfman, Supervising Deputy Atty. General, Christopher J. Wei, Deputy Atty. General, for Plaintiff/Respondent.

Statement of the Case

Defendant Joe Isais appeals from a judgment entered after the court found him guilty of felony drunk driving, driving under the influence with three or more prior convictions, driving with a suspended or revoked license, and being under the influence of a controlled substance.   The court also found true enhancement allegations that defendant had numerous previous convictions for driving under the influence and driving with a suspended or revoked license and had suffered a prior conviction and served a prior prison term for possession of a controlled substance.   This appeal deals with the court's further finding that defendant suffered a prior serious felony conviction that qualified as a “strike” under Penal Code section 667, the Three Strikes law.

Defendant claims the court erroneously considered testimony in the preliminary hearing transcript for the prior offense in finding it was a serious felony.   He also claims this prior conviction does not qualify as a “strike” because he committed the underlying offense before the Three Strikes law was enacted.

We reject these claims and affirm the judgment.

Pertinent Facts 1

At trial, the prosecution sought to prove, among other things, that defendant suffered a prior serious felony conviction, in that he committed a felony in which he personally inflicted great bodily injury on a person other than an accomplice.  (Pen.Code, §§ 667, subd. (a)(4);  1192.7, subd. (c)(8).)   To this end, the prosecutor introduced various items in the record of defendant's prior conviction for driving under the influence and causing injury.  (Veh.Code, § 23153.)   Among those items was the transcript of the preliminary hearing in that case.   Defendant objected to the transcript, claiming it was hearsay and its use violated his constitutional right to confront and cross-examine witnesses.   The trial court overruled the objection, admitted and considered the transcript, and found that defendant's prior conviction involved the infliction of great bodily injury.

I. The Preliminary Hearing Transcript Was Properly Admitted.

 Defendant contends the trial court erred in overruling his constitutional and hearsay objections and considering the preliminary hearing testimony.2  In particular, he claims because the prosecutor failed to show that the preliminary hearing witnesses were unavailable at his present trial, admission of their former testimony violated his right under the Sixth Amendment to the United States Constitution to confrontation and cross-examination.3

Defendant acknowledges that there are recent cases rejecting his claim, but he argues they were wrongly decided.   We conclude that the trial court properly considered the preliminary hearing testimony.

Before focusing on defendant's claim, we find it necessary to review our Supreme Court's decision in People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150 (Guerrero ).   In Guerrero, the information alleged, among other things, that the defendant suffered two prior serious felony convictions for burglary of a residence.   After reviewing the record of the conviction, including the accusatory pleadings, which expressly charged a residential burglary, and the defendant's pleas, the court found the allegations true and imposed two 5–year enhancements for each prior conviction.  (Id. at p. 345, 243 Cal.Rptr. 688, 748 P.2d 1150.)   The appellate court reversed.   It concluded that in looking at these portions of the record, the trial court violated People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, which limited proof of enhancements to the judgment of conviction and matters necessarily established by it.   (Guerrero, supra, 44 Cal.3d at p. 346, 243 Cal.Rptr. 688, 748 P.2d 1150.)

Our Supreme Court reversed the appellate court.   It overruled Alfaro because the case law cited therein did not support the narrow rule propounded.  (Guerrero, supra, 44 Cal.3d at p. 348, 243 Cal.Rptr. 688, 748 P.2d 1150.)   Upon closer analysis, these cases 4 supported a broader rule:  the court may look to the entire record of the conviction to determine the substance of the prior conviction.  (Id. at pp. 352, 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)   The court further opined that this “rule is both fair and reasonable.   To allow the trier of fact to look to the entire record of the conviction is certainly reasonable:  it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people in establishing an enhancement for ‘burglary of a residence’—a term that refers to conduct, not a specific crime.   To allow the trier to look to the record of the conviction—but no further—is also fair:  it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.”  (Id. at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150;  accord:  People v. Myers (1993) 5 Cal.4th 1193, 1200, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

In a footnote, however, the Supreme Court warned, “[W]e are not called on to resolve such questions as what items in the record of conviction are admissible 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.   Because we are not called on to resolve such questions, we decline to address them here.”  (Guerrero, supra, 44 Cal.3d at p. 356, fn. 1, 243 Cal.Rptr. 688, 748 P.2d 1150.)

After Guerrero, appellate courts have addressed the issues left unresolved and found a variety of items from the file of a prior conviction proper for consideration.5  Pertinent here are three cases, two from this court, which hold that preliminary hearing testimony is admissible to prove the substance of a prior conviction.

In People v. Castellanos (1990) 219 Cal.App.3d 1163, 269 Cal.Rptr. 93 (Castellanos ), the defendant claimed preliminary hearing transcripts were inadmissible hearsay and their admission violated his right to confrontation because the prosecution failed to establish the unavailability of the preliminary hearing witnesses.  (Id. at pp. 1169, 1173, 269 Cal.Rptr. 93.)

The court rejected this claim.   It noted that although unavailability was not shown, the defendant had confronted and cross-examined the witnesses at the preliminary hearing “with the same motive that he would have had if he were allowed the opportunity to cross-examine them in this case.   However, to allow him to do so [at trial] would be totally contrary to Guerrero 's bar against relitigating the circumstances of an earlier crime.”  (Castellanos, supra, 219 Cal.App.3d at pp. 1173–1174, 269 Cal.Rptr. 93.)

The court acknowledged that if the preliminary transcripts were being offered to prove guilt at the subsequent trial on the same offense or at a probation or parole revocation hearing based on that offense, then the transcripts would not be admissible absent a showing the witnesses were unavailable.   (Castellanos, supra, 219 Cal.App.3d at p. 1174, 269 Cal.Rptr. 93.)   “However, the nature of the proceeding here, to determine whether a defendant has suffered a prior serious felony conviction (not to determine whether he is guilty of that earlier offense), is a different breed of animal.  [Fn. omitted.]   Because the preliminary hearing transcript testimony and other relevant court documents, albeit hearsay, are not being offered against the defendant in the traditional sense, but are merely being offered for the neutral inquiry as to the nature of the earlier offense, i.e., to explain the defendant's conduct which comprised the crime he admitted to have suffered in the earlier proceeding, they are admissible as exceptions to the hearsay rule to explain his admissions.  [Citation.]  [¶] Such limited admissibility comports with Guerrero 's goal of promoting ‘the efficient administration of justice.’  [Citation.]”  (Ibid.)

In People v. Goodner (1990) 226 Cal.App.3d 609, 276 Cal.Rptr. 542 (Goodner ), this court held, among other things, that the trial court erred in refusing to consider the preliminary hearing transcript.  (Id. at p. 616, 276 Cal.Rptr. 542.)   In so doing, we adopted the rationale in Castellanos and further concluded that the defendant was adequately protected from the traditional dangers of hearsay because the testimony at the preliminary hearing was made under oath and subject to cross-examination.  (Ibid.)

In People v. Gonzales (1994) 29 Cal.App.4th 1684, 35 Cal.Rptr.2d 450 (Gonzales ), this court revisited the issue.6  There, the defendant also claimed that use of the preliminary hearing transcript violated his constitutional rights to confrontation and cross-examination.  (Id. at p. 1701, 35 Cal.Rptr.2d 450.)   We reaffirmed the analyses in Castellanos and Goodner.  (Id. 29 Cal.App.4th at pp. 1701–1703, 35 Cal.Rptr.2d 450.)   We acknowledged cases holding that unavailability must be shown before a preliminary hearing transcript may be introduced against the defendant at a probation revocation hearing.   However, we agreed with Castellanos, that a probation revocation hearing was “procedurally” distinguishable from a determination concerning the nature of a prior conviction.  (Id. at p. 1703, 35 Cal.Rptr.2d 450;  see Castellanos, supra, 219 Cal.App.3d at p. 1174, 269 Cal.Rptr. 93.)

Defendant here asks us to disapprove Castellanos and our previous decisions in Goodner and Gonzales.   No small order.   He claims these decisions show inadequate deference to the unavailability requirement which, he correctly notes, is constitutionally mandated.   Indeed, he claims these cases abrogated this requirement without legal authority or justification for doing so.

We agree that Castellanos, Goodner, and Gonzales do not discuss the constitutional status of the unavailability requirement in great detail.   We do so now and agree with the conclusion they reach.

We first explain the limitations on the use of former testimony in criminal proceedings imposed by the Confrontation Clause (6th Amend., U.S. Const.).   In Ohio v. Roberts (1980) 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597, the United States Supreme Court explained that the Confrontation Clause “reflects a preference for face-to-face confrontation at trial, and that a primary interest secured by [the provision] is the right of cross-examination.”  (Id. at p. 63, 100 S.Ct. at p. 2537, internal quotation marks and fn. omitted.)   The court continued, “These means of testing accuracy are so important that the absence of proper confrontation at trial calls into question the ultimate integrity of the fact-finding process.”  (Id. at p. 64, 100 S.Ct. at p. 2538, internal quotation marks omitted.)

With this in mind, the court held that the Confrontation Clause “restrict[s] the range of admissible hearsay” in two ways.   First, it establishes “a rule of necessity.”  (448 U.S. at p. 65, 100 S.Ct. at p. 2538.)  “In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” 7  (Ibid.)   Second, the Clause permits hearsay only where there are sufficient “indicia of [its] reliability” to ensure the “trustworthiness” of the hearsay.  (Ibid., internal quotations marks omitted.)

We next discuss the relationship between the unavailability requirement and Guerrero.   As the Castellanos court observed, Guerrero prohibits the prosecution from going behind the record of conviction to relitigate the circumstances of an earlier crime by “ ‘introducing evidence outside the record [of conviction].’ ”  (Castellanos, supra, 219 Cal.App.3d at pp. 1170, 1171, 1174, 269 Cal.Rptr. 93, quoting People v. Smith (1988) 206 Cal.App.3d 340, 344, fn. 6, 253 Cal.Rptr. 522, accord:  People v. Johnson (1992) 3 Cal.4th 1183, 1242, 14 Cal.Rptr.2d 702, 842 P.2d 1.)   In other words, to prove the nature or substance of a prior conviction, the prosecution is limited to the existing record of that conviction.   This rule is derived from Guerrero, where, as noted above, the court said it was fair to permit the prosecutor to look to the record of conviction “but no further [.]”  (Guerrero, supra, 44 Cal.3d at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150, italics in original.)

Other courts have recognized and followed this rule.  (See People v. Matthews (1991) 229 Cal.App.3d 930, 936–937, 280 Cal.Rptr. 134;  see also People v. Dunlap (1993) 18 Cal.App.4th 1468, 1474–1476, 23 Cal.Rptr.2d 204.)   For example, in People v. Rhoden, supra, 216 Cal.App.3d 1242, 265 Cal.Rptr. 355, the trial court, over the defendant's objection, considered a “commitment to custody form,” in which the defendant admitted conduct showing his offense to be a serious felony.  (Id. at pp. 1255, 1257, 265 Cal.Rptr. 355.)   On appeal, the court concluded that the form was not part of the record of conviction and the trial court erred in considering the admissions contained therein.   This was so even though the defendant's statements would have been admissible over a simple hearsay objection.  (Id. at pp. 1257–1258, 265 Cal.Rptr. 355.)

The Castellanos court implicitly recognized a conflict between the unavailability requirement and the Guerrero rule.  (Castellanos, supra, 219 Cal.App.3d at pp. 1173–1174, 269 Cal.Rptr. 93.)   Under the former, if a preliminary hearing witness is available to testify at trial, then his or her preliminary hearing testimony is inadmissible, and the witness must be produced.   Under the latter, however, live testimony from such a witness is inadmissible because it is outside the record of conviction and would constitute relitigating the nature of the prior offense.

Defendant embraces this conflict and claims that in combination, the Guerrero rule and the Confrontation Clause render a preliminary hearing transcript inadmissible under any circumstances.   Although possessed of a certain simple logic, this claim lacks merit.

In our view, it is unreasonable to apply the Confrontation Clause and the Guerrero rule as a “one-two punch” that knocks out use of preliminary hearing testimony to prove the nature of a prior conviction.   Such a view creates an untenable anomaly:  former testimony could be used to prove each and every fact in a criminal trial except the nature of a prior conviction.  (Cf. Houghtaling v. Superior Court (1993) 17 Cal.App.4th 1128, 1134, fn. 5, 21 Cal.Rptr.2d 855.)   We doubt the Supreme Court in Guerrero intended to limit the prosecution's ability to prove the nature of a prior.   On the contrary, in overruling Alfaro, the court expanded the sources of evidence available as proof.   Moreover, the court explained that doing so was fair and reasonable to both the prosecution and defense and not only protected defendant's constitutional rights but also promoted the efficient administration of justice and the intent of the people in establishing enhancements for serious felonies.

We believe the Guerrero rule can be harmonized with the Confrontation Clause to permit admission of former testimony.   We have found no case defining unavailability within the meaning of the Confrontation Clause or articulating the standard by which it is determined.   In United States v. Inadi, supra, 475 U.S. 387, 106 S.Ct. 1121, the court explained the reasons for requiring unavailability.  “[F]ormer testimony often is only a weaker substitute for live testimony.   It seldom has independent evidentiary significance of its own, but is intended to replace live testimony.   If the declarant is available and the same information can be presented to the trier of fact in the form of live testimony, with full cross-examination and opportunity to view the demeanor of the declarant, there is little justification for relying on the weaker version.   When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence.  [Citation.]  But if the declarant is unavailable, no ‘better’ version of the evidence exists, and the former testimony may be admitted as a substitute for live testimony on the same point.”  (Id. at pp. 394–395, 106 S.Ct. at pp. 1125–1126.)

 Clearly, under the Guerrero rule, two versions of the same evidence—former and live testimony—are not available to prove the nature of a prior conviction, and the information contained in preliminary hearing testimony cannot be presented to the trier of fact in the form of live testimony because such testimony is absolutely prohibited.   Thus, in effect, this prohibition operates as a judicial declaration that as a matter of law, preliminary hearing witnesses are “unavailable” within the meaning of the Confrontation Clause.8  Even the court in Roberts acknowledged that confrontation at trial must occasionally give way to considerations of public policy and necessity and interests in effective law enforcement and the development of precise rules of evidence in criminal proceedings.  (Ohio v. Roberts, supra, 448 U.S. at pp. 64–65, 100 S.Ct. at pp. 2538–2539.)   Thus, given the effect of the Guerrero rule, we conclude that the admission of preliminary hearing testimony below did not violate defendant's constitutional rights under the Sixth Amendment.9

 This conclusion, however, does not fully establish the admissibility of preliminary hearing testimony, for the Supreme Court in People v. Myers, supra, 5 Cal.4th 1193, 22 Cal.Rptr.2d 911, 858 P.2d 301, stated that “if not precluded by the rules of evidence or other statutory limitations,” the trial court may look to the entire record of a conviction to determine whether it is a serious felony.  (Id. at p. 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301, italics added.) 10  Thus, the question before us is whether the constitutional unavailability established by the Guerrero rule satisfies the statutory requirements of unavailability under the Evidence Code.11  We think not.

Statutory unavailability is governed by section 240.   This section states, in relevant part:  “(a) Except as otherwise provided in subdivision (b), ‘unavailable as a witness' means that the declarant is any of the following:  [¶] (1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.  [¶] (2) Disqualified from testifying to the matter.  [¶] (3) Dead or unable to attend or testify at the hearing because of then existing physical or mental illness or infirmity.  [¶] (4) Absent from the hearing and the court is unable to compel his or her attendance by its process.  [¶] (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.” 12

Guerrero 's prohibition against live testimony from preliminary hearing witnesses does not reasonably fall within one of these statutory categories of unavailability.

Subdivision (a)(1) of section 240 relates to any “privilege” a witness has not to testify.   Section 911 provides that “Except as otherwise provided by statute:  [¶] (a) No person has a privilege to refuse to be a witness.  [¶] (b) No person has a privilege to refuse to disclose any matter or refuse to produce any writing, object, or other thing.  [¶] (c) No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any writing, object, or other thing.”

Guerrero 's prohibition against the admission of live testimony is not a privilege.   It is a rule excluding a form of evidence.   Moreover, section 911 clearly establishes the exclusivity of statutory privileges.   We need not discuss them individually, for none can reasonably be construed to include the right of a preliminary hearing witness not to testify in a subsequent criminal proceeding concerning the nature of a prior conviction.

Subdivision (a)(2) of section 240 relates to “disqualification,” a term that refers to a witness's competency.   Section 700 provides, “Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.”   Section 701 disqualifies as witnesses those incapable of expressing themselves directly or through others or understanding their duty to tell the truth.   Again, these latter forms of disqualification are exclusive, and the Guerrero prohibition does not reasonably fall within either one.

Similarly, the Guerrero, prohibition does not come within section 240, subdivision (a)(3), covering the dead or those too infirm to testify;  subdivision (a)(4), covering those whose attendance the court can not compel “by its process”;  or subdivision (a)(5), covering those whom the prosecution has exercised reasonable diligence but been unable to produce by the court's process.

Our discussion does not end here, for if it did, we would have to accept the anomalous, if not irrational, situation described above that former testimony could be used to prove any fact except the nature of a prior conviction.   We need not do so because as defendant correctly notes, the Castellanos–Goodner–Gonzales line of cases establishes a narrow exception to the hearsay rule for former testimony that obviates the need to establish unavailability when the former testimony is offered to prove the nature of a prior conviction.  (See Castellanos, supra, 219 Cal.App.3d at p. 1174, 269 Cal.Rptr. 93;  Goodner, supra, 226 Cal.App.3d at p. 616, 276 Cal.Rptr. 542;  Gonzales, supra, 29 Cal.App.4th at p. 1703, 35 Cal.Rptr.2d 450.)

Unlike the Evidence Code sections that establish privileges and grounds for disqualification, section 1200 bars hearsay “[e]xcept as provided by law.”   “ ‘[L]aw,’ in this context, includes decisional law.   Consequently, [courts] are empowered to create, or recognize, an exception not specifically set forth in the statutes.”  (Houghtaling v. Superior Court, supra, 17 Cal.App.4th at p. 1134, 21 Cal.Rptr.2d 855, fn. omitted;  People v. Wheeler (1992) 4 Cal.4th 284, 300, 14 Cal.Rptr.2d 418, 841 P.2d 938.)

Defendant concedes this but notes that the creation of new hearsay exceptions is “discouraged” if the new exception “would, in instances in which the Legislature has considered but rejected a particular exception, usurp the function of the Legislature.”   He argues that section 1291 embodies the Legislature's determination concerning the use of former testimony and because it requires a showing of unavailability, a new exception eliminating this requirement should not have been judicially created.   We disagree.

Section 1291 was enacted in 1965 (stats.1965, c. 299, § 2, p. 1344), long before the Supreme Court decided Guerrero.   The Legislature could not have taken into account the effect of the Guerrero rule.   Consequently, section 1291 cannot reasonably be deemed a considered rejection of the Castellanos–Goodner–Gonzales exception to the hearsay rule for former testimony.

Defendant's reliance on People v. Wheeler, supra, 4 Cal.4th 284, 14 Cal.Rptr.2d 418, 841 P.2d 938 is misplaced.   There, by contrast, the court declined to create a hearsay exception allowing impeachment with misdemeanor convictions because “the Legislature itself carefully weighed the distinction between felony and misdemeanor convictions when it decided to create a hearsay exception for felony convictions only.”  (Id. at pp. 297–300, 14 Cal.Rptr.2d 418, 841 P.2d 938.)

We next note that the Castellanos–Goodner–Gonzales exception is an appropriate corollary to the Guerrero rule.   It is necessary to avoid the anomaly discussed above.   It is also reasonable because the unavailability created by Guerrero is functionally the same as the types of unavailability described in section 240.   Moreover, since Guerrero establishes unavailability for constitutional purposes, the new exception does not weaken the protection of a defendant's rights to confrontation and cross-examination.   Finally, in the narrow criminal context in which the exception operates, we discern no separate and independent interest protected by the statutory requirement of unavailability.13

Given our analysis and discussion, we hold that the trial court did not err in considering the preliminary hearing testimony in determining the nature of defendant's prior convictions.

II. Defendant's Prior Conviction Qualifies as a Strike.

 Defendant contends the court erred in finding one prior conviction a “strike” under the Three Strikes law.14  He notes that section 667, subdivision (d)(1), provides, “The determination of whether a prior conviction is a prior felony conviction [i.e., a ‘strike’] for purposes of [the Three Strikes law], shall be made upon the date of that prior conviction ․”  (Italics added.)   He argues that because he suffered his prior conviction before the Three Strikes law became effective, his prior cannot qualify as a “strike.”   We disagree.

Five recent cases have rejected this identical claim.  (People v. Reed (1995) 33 Cal.App.4th 1608, 40 Cal.Rptr.2d 47 [First Dist., Div. Five];  People v. Anderson (1995) 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474 [First Dist., Div. Three];  People v. Sipe (1995) 36 Cal.App.4th 468, 42 Cal.Rptr.2d 266 [Third Dist.];  People v. Green (1995) 36 Cal.App.4th 280, 42 Cal.Rptr.2d 249 [Second Dist., Div. Two];  and Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 44 Cal.Rptr.2d 144 [Fifth Dist.].)

We need not recount in detail the overlapping analyses in these cases.   It suffices to say that we agree with the collective reasoning and conclusion that defendant's view of the statutory language is unreasonable because it does not take into account the surrounding context, it renders certain portions of the Three Strikes law meaningless, it leads to absurd results, and it is wholly inconsistent with the purpose of the law, which is to “ensure longer prison sentences and greater punishment” for serious and violent recidivists.  (See § 667, subd. (b).)

Defendant's arguments to the contrary and reliance on rules of construction that require us to apply the plain meaning of statutory language and resolve ambiguities in favor of the defendant do not persuade us otherwise.   Simply put, these rules do not compel adoption of defendant's interpretation where, as here, they would result in absurd consequences, render portions of the statute meaningless, and frustrate the evident purpose of the law.  (See People v. Broussard (1993) 5 Cal.4th 1067, 1070–1071, 22 Cal.Rptr.2d 278, 856 P.2d 1134;  People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473.)

According to defendant, the Three Strikes law established a clean slate for everyone, and even the most hardened recidivist criminals do not begin to accumulate “strikes” until after the effective date of the statute.   This view is patently inconsistent with the purpose of the statute and the companion initiative and, in our view, constitutes an absurd result.

Disposition

The judgment is affirmed.

FOOTNOTES

1.   The facts concerning the offense for which defendant was convicted are not relevant to the issues raised on appeal.   It suffices to say that at 9 a.m. on April 17, 1994, defendant was arrested for driving under the influence and without a valid license.   His blood alcohol level at the time was .13 percent.

2.   The transcript itself was admissible under Evidence Code section 1280, which creates an exception to the hearsay rule (Evid.Code, § 1200) for official records and writings.  (See People v. Abarca (1991) 233 Cal.App.3d 1347, 1350, 285 Cal.Rptr. 213.)   However, the testimony in the transcript is hearsay, and the official records exception does not authorize its admission.

3.   Article I, section 15 of the California Constitution also guarantees criminal defendants the right to confront witnesses against them.   This right is confirmed and iterated in Penal Code section 686.   Because defendant confines his claim to the federal constitutional right, we so confine our discussion.   Moreover, we doubt an analysis of the claim under our State constitution would be any different.  (See, e.g., People v. Louis (1986) 42 Cal.3d 969, 982–983, 232 Cal.Rptr. 110, 728 P.2d 180.)

4.   In re McVickers (1946) 29 Cal.2d 264, 176 P.2d 40;  In re Seeley (1946) 29 Cal.2d 294, 176 P.2d 24;  and In re Finley (1968) 68 Cal.2d 389, 66 Cal.Rptr. 733, 438 P.2d 381.

5.   For example, courts have found it proper for the court to consider (1) the abstract of judgment (People v. Colbert (1988) 198 Cal.App.3d 924, 930, 244 Cal.Rptr. 98);  (2) the charging document and change of plea form (People v. Carr (1988) 204 Cal.App.3d 774, 778, 251 Cal.Rptr. 458);  (3) the defendant's admissions in a Tahl form and transcripts of the sentencing hearing (People v. Smith (1988) 206 Cal.App.3d 340, 345, 253 Cal.Rptr. 522);  (4) a minute order reflecting a no contest plea (People v. Harrell (1989) 207 Cal.App.3d 1439, 1444, 255 Cal.Rptr. 750);  (5) section 1203.01 statement of views by the judge and prosecutor (People v. Johnson (1989) 208 Cal.App.3d 19, 25, 256 Cal.Rptr. 16);  (6) the defendant's admissions in a probation report (People v. Garcia (1989) 216 Cal.App.3d 233, 237, 264 Cal.Rptr. 662;  but see People v. Williams (1990) 222 Cal.App.3d 911, 272 Cal.Rptr. 212 [statements of victim in probation report not admissible] );  and (7) the defendant's admissions in the transcript of a change of plea hearing (People v. Abarca, supra, 233 Cal.App.3d at p. 1351, 285 Cal.Rptr. 213).On the other hand, courts have found certain documents not part of the record of conviction.  (See, e.g., People v. Rhoden (1989) 216 Cal.App.3d 1242, 265 Cal.Rptr. 355 [Department of Corrections commitment form];  People v. Matthews (1991) 229 Cal.App.3d 930, 280 Cal.Rptr. 134 [state and local “rap” sheets];  but see People v. Dunlap (1993) 18 Cal.App.4th 1468, 23 Cal.Rptr.2d 204 [“rap” sheet admissible to prove fact, rather than substance, of prior].)

6.   Goodner was authored by Justice Cottle, with Justices Agliano and Bamattre–Manoukian concurring.  Gonzales was authored by Justice Bamattre–Manoukian, with Justices Premo and Elia concurring.

7.   In a footnote, the court opined, “A demonstration of unavailability, however, is not always required[,]” citing as an example, Dutton v. Evans (1970) 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213.   (Ohio v. Roberts, supra, 448 U.S. at p. 65, fn. 7, 100 S.Ct. at p. 2538, fn. 7.)   We do not believe the court intended this comment to relate to the use of former testimony.   First, in Dutton, the court held that the admission of out-of-court statements by an accomplice under Georgia's hearsay exception for co-conspirator's statements did not violate the Confrontation Clause.  (Dutton, supra, 400 U.S. at pp. 88–89, 91 S.Ct. at pp. 219–220.)   The Dutton court distinguished the admission of such statements from, among other things, former testimony.  (Id. at p. 87, 91 S.Ct. at p. 219.)   We further note that after Roberts, the United States Supreme Court has reaffirmed the rule that unavailability is a constitutional prerequisite to the admission of former testimony.  (See White v. Illinois (1992) 502 U.S. 346, 355–356, 112 S.Ct. 736, 742–743, 116 L.Ed.2d 848;  United States v. Inadi (1986) 475 U.S. 387, 394, 106 S.Ct. 1121, 1125, 89 L.Ed.2d 390.)

8.   We doubt the Confrontation Clause requires an express finding by the trial court of unavailability.   Moreover, since Guerrero establishes the constitutional requirement of unavailability and since inferior courts are bound by Guerrero (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937), trial courts should not be required to make a redundant finding of constitutional unavailability.   As a rule, the law does not require useless acts.   (Civ.Code, § 3532;  People v. Kitchens (1956) 46 Cal.2d 260, 263, 294 P.2d 17.)

9.   We recognize that in Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, the court stated that a witness is not ‘unavailable’ under the Confrontation Clause ‘unless the prosecutor has made a good-faith effort to obtain his presence at trial.’  (Id. at pp. 724–725, 88 S.Ct. at pp. 1321–1322.   We do not read this language as an absolute rule.   In Barber, the prosecution made no effort to produce a witness whom it knew was incarcerated in another jurisdiction.   The court explained that absent such an effort, mere incarceration elsewhere does not establish unavailability.   As the Roberts court later explained, the Confrontation Clause requires that unavailability be established in some way before former testimony may be admitted.  (448 U.S. at p. 65, 100 S.Ct. at p. 2539.)   Certainly, an unsuccessful, good-faith effort is one way.   However, it is not the only way to establish unavailability.

10.   Myers involved what evidence may be introduced to prove that a foreign conviction was a serious felony under California law.  (People v. Myers, supra, 5 Cal.4th at p. 1198, 22 Cal.Rptr.2d 911, 858 P.2d 301.)   The court extended its holding in Guerrero to this context.

11.   Evidence Code section 1291 establishes an exception to the hearsay rule for former testimony.   It conditions admissibility on a showing that (1) the declarant is unavailable and (2) “[t]he former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person;”  or “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”   (Evid.Code, § 1291, subds. (a)(1) and (a)(2);  see also Pen.Code, § 686, subd. (3)(a) [“Hearsay may be admitted to the extent that it is otherwise admissible in a criminal action under the law of this state.”].)Evidence Code section 1291 conforms to the constitutional limitations on the use of former testimony.  (People v. Louis, supra, 42 Cal.3d at p. 983, 232 Cal.Rptr. 110, 728 P.2d 180;  People v. Brock (1985) 38 Cal.3d 180, 189, 211 Cal.Rptr. 122, 695 P.2d 209.)Unless otherwise specified, all further statutory references in this section are to the Evidence Code.

12.   Although section 240, subdivision (a), does not expressly state that the list of circumstances is exclusive, this is the plain and clear meaning of its introduction language.   Moreover, even if this language were ambiguous, we would reach the same conclusion because it reflects and promotes the evident purpose of the statute.   The Assembly Committee on the Judiciary's Comment to this section states, in relevant part, that section 240 “substitutes a uniform standard for the varying standards of unavailability provided by the superseded Code of Civil Procedure sections providing hearsay exceptions.”  (West's Annot.Evid.Code, § 240, p. 35.)   Our conclusion is also supported by the recognized rule of statutory construction that the expression of certain things in a statute necessarily involves the exclusion of other things not expressed—expressio unius est exclusio alterius.  (See Henderson v. Mann Theatres Corp. (1976) 65 Cal.App.3d 397, 403, 135 Cal.Rptr. 266.)

13.   In Castellanos, Goodner, and Gonzales, the courts stated that the preliminary hearing testimony was admissible “as exceptions to the hearsay rule to explain [the defendant's] admissions.”   (Castellanos, supra, 219 Cal.App.3d at p. 1174, 269 Cal.Rptr. 93;  Goodner, supra, 226 Cal.App.3d at p. 616, 276 Cal.Rptr. 542;  Gonzales, supra, 29 Cal.App.4th at p. 1703, 35 Cal.Rptr.2d 450.)   In those cases, as here, the prior convictions were based on pleas.   We see no reason the Castellanos–Goodner–Gonzales exception ought not also apply where the prior conviction was based on a trial.   In our view, former testimony whether at the preliminary hearing or at trial should be admissible directly to prove the nature of the prior conviction, regardless of how guilt was established.

14.   Unless otherwise specified, all further statutory references in this section are to the Penal Code.