PEOPLE v. MARTINEZ (1997)

Larry Salvador Martinez appeals his convictions for kidnapping a child under 14, rape, and forcible lewd act on a child (Pen.Code, §§ 207/208, subd. (b), 288, subd. (b), 261, subd. (a)(2)), with enhancements for kidnapping to commit sexual assault, inflicting great bodily injury, and being a habitual offender (Pen.Code, §§ 667.8, subds.(a) & (b), 12022.7, 12022.8, 667.7, subd. (a)(2)).   He was sentenced to a prison term of life without the possibility of parole plus five years.   He contends:  the trial court erred by allowing the prosecution to prove prior felony convictions and prison terms by hearsay evidence;  the trial court should have sentenced him under the Three Strikes law rather than an older habitual offender statute;  and one of the priors did not qualify for the aggravated life-without-possibility-of-parole term under the older habitual offender statute.

BACKGROUND

On July 16, 1994, Lucy M., an eight-year-old child, was walking with her senile grandmother.   Martinez, who knew Lucy, offered her a ride home on his bicycle.   Lucy accepted the offer.   Martinez then forced Lucy into a carport where he choked her, beat her unconscious and raped her.¹

Martinez pled guilty to rape, forcible lewd act on a child and kidnap of a child under 14.   He admitted the offense-connected enhancement allegations.   There was a court trial on the prior conviction allegations.   The trial court found Martinez had sustained prior convictions in four cases, that these convictions triggered sentencing under a habitual offender statute (Pen.Code, § 667.7) ² , and that three of the cases qualified as prior serious felonies under section 1192.7, and as strikes under section 667, subdivisions (b)-(i).   The trial court denied Martinez's motion to apply the Three Strikes law;  instead, sentencing him under section 667.7, subdivision (a)(2).

The trial court denied probation and sentenced Martinez to state prison for life without the possibility of parole, plus five years.

DISCUSSION

1. Sentencing under section 667.7 or Three Strikes, but not both.

 Martinez contends he should have been sentenced under the Three Strikes law, rather than section 667.7, because his criminal record satisfied both sentencing schemes and the Three Strikes law supersedes section 667.7 in such a circumstance.³  We do not agree.

Section 667.7, which predates the Three Strikes law, is a habitual offender statute applicable if a defendant has served prior separate prison terms for violent felonies.   It provides:

“(a) Any person convicted of a felony in which the person inflicted great bodily injury as provided in Section 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in Section 667.5 for the crime of [various enumerated offenses];  ․ any felony in which the person inflicted great bodily injury as provided in Section 12022.7;  or any felony punishable by death or life imprisonment with or without the possibility of parole is a habitual offender and shall be punished as follows:

“(1) A person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046, whichever is greatest․

“(2) Any person convicted of a felony specified in this subdivision who has served three or more prior separate prison terms, as defined in Section 667.5, for the crimes specified in subdivision (a) of this section shall be punished by imprisonment in the state prison for life without the possibility of parole.

“(b) This section shall not prevent the imposition of the punishment of death or imprisonment for life without the possibility of parole.   No prior prison term shall be used for this determination which was served prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction.   As used in this section, a commitment to the Department of the Youth Authority after conviction for a felony shall constitute a prior prison term.   The term imposed under this section shall be imposed only if the prior prison terms are alleged under this section in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by a trial by the court sitting without a jury.”

Martinez points to the following language in People v. Jenkins (1995) 10 Cal.4th 234, 238, fn. 2, 40 Cal.Rptr.2d 903, 893 P.2d 1224:  “The three strikes scheme does not supersede the habitual offender scheme under section 667.7, but is similar to it in several respects, ․ If the prosecution pleads and proves that a defendant qualifies for sentencing under the three strikes scheme (§ 667, subd. (f)(1)), the defendant must be sentenced pursuant to its provisions, even if he or she otherwise would qualify for sentencing under section 667.7 or some other sentencing statute. (§ 667, subd. (f)(1).)”  Based on this statement, Martinez argues the trial court erred by sentencing him under section 667.7 instead of under the Three Strikes law.   His argument is not persuasive.

The Jenkins footnote, as Martinez acknowledges, is dictum.  Jenkins did not deal with the potential interplay between Penal Code section 667.7 and the Three Strikes law.   In the present case, the prosecution pled and proved Martinez qualified for sentencing under both the Three Strikes law and Penal Code section 667.7.  Jenkins noted the “evident purpose” of section 667.7 is “to provide a distinct and more severe sentencing scheme for violent habitual offenders.”  (People v. Jenkins, supra, 10 Cal.4th at p. 243, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

The Legislature expressly mandated a term of life imprisonment without the possibility of parole for habitual offenders such as Martinez.   The purpose of the Three Strikes law was to “ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b).)  Thus, sentencing Martinez under Three Strikes would defeat the very purpose of the Three Strikes law.

As for Martinez's supersession argument, we note that People v. Williams (1995) 40 Cal.App.4th 446, 46 Cal.Rptr.2d 730, by relying on the Three Strikes statement of legislative purpose, rejected a claim the Three Strikes law had superseded the death penalty and special circumstances statutes (§§ 190, 190.2).  “Insulating capital murderers who have one or more prior felony convictions from a sentence of death or life without parole hardly ‘ensure[s] longer prison sentences and greater punishment․’ ”  (Id. at p. 458, 46 Cal.Rptr.2d 730.)   Similarly, sentencing Martinez under the Three Strikes law, in light of section 667.7's punishment of life without the possibility of parole, would result in a lesser sentence than the Legislature intended.   In order to avoid this absurd result, we conclude the greater punishment of Penal Code section 667.7 must apply.

Subsequent to the briefing in this case, People v. Ervin (1996) 50 Cal.App.4th 259, 57 Cal.Rptr.2d 728, discussed the nexus of Three Strikes and another aggravated sentencing scheme.  Ervin involved the overlap of the Three Strikes law and the so-called “One Strike Law”-section 667.61-which punishes aggravated sex offenses.

Ervin appealed his 15 years-to-life sentence under section 667.61, arguing that because he had a qualifying prior he should have been sentenced to a determinate 16-year term under the Three Strikes law.   The People argued the two statutes are cumulative, not alternative, and that Ervin's section 667.61 sentence should have been doubled.   The Court of Appeal agreed with the People, rejecting Ervin's reliance on footnote 2 in Jenkins for the proposition the Supreme Court would hold the Three Strikes law trumps section 667.61:  “What [footnote 2] means is that a second or third strike defendant is not entitled to a benefit (that is, a shorter sentence) under section 667.7 or some other sentencing statute, not that he cannot be punished more severely when the three strikes law is permissibly applied.”  (People v. Ervin, supra, 50 Cal.App.4th at p. 265, 57 Cal.Rptr.2d 728.)

There are, however, two big differences between Ervin and the case at bar:  (1) while section 667.61 was enacted after Three Strikes, section 667.7 predates Three Strikes;  (2) Ervin noted “the three strikes law and section 667.61 serve different objectives-the former punishes recidivism, the latter aggravated sex offenses-and there is simply no reason for suggesting that a recidivist criminal ought to be rewarded rather than penalized because his latest offense is sufficiently heinous to bring him within the provisions of section 667.61.”  (Id. at p. 264, 57 Cal.Rptr.2d 728.)

Here, the other sentencing scheme at issue is-like Three Strikes-a habitual offender statute.   We conclude it would not be proper to have both habitual offender sentencing schemes apply in the same case.

2. Evidence of priors adequate.

Martinez contends the trial court erred by admitting, in violation of the hearsay rule, computerized rap sheets and portions of a probation report in order to prove he was the person who had suffered the alleged prior convictions and prior prison terms.   This claim is meritless.

The prosecution alleged numerous prior convictions and prison terms arising out of four proceedings:  case numbers A352194, A438028, A447058 and A789375.  The trial court had in its possession, and took judicial notice of, the original Superior Court case file in each of these proceedings except for A789375.   The Superior Court case file for A789375 was missing (although, as noted below, there was available a probation report and an abstract of judgment for that case).   The Superior Court case files for the other three proceedings contained various documents relating to both criminal history (e.g., presentence reports) and identity (signatures of the defendant on such documents as a letter to a sentencing judge, a stipulation to proceed before a commissioner, and a pro se notice of appeal).

The Penal Code section 969b “prison packet” submitted by the prosecution contained a copy of the abstract of judgment for case A789375, the case with the missing Superior Court file.   The prison packet also contained copies of the abstracts of judgment for cases A352194 and A447058.   The prison packet did not, however, contain either a photograph or a fingerprint card.   Hence, the prosecution needed to establish a linkage between defendant Larry Salvador Martinez and the Larry (or Lawrence) Martinez who was the subject of the various documentary exhibits, a problem exacerbated by the commonality of defendant's name.

The prosecution offered into evidence 18 exhibits and live testimony to prove the necessary linkage.   Following a lengthy hearing, the trial court found some of the People's exhibits admissible, some inadmissible, and some admissible for limited purposes only.   Then, after hearing further argument from the parties, the trial court held the admissible evidence established that Martinez was indeed the same person who had been the subject of the four prior proceedings.⁴  On appeal, Martinez does not challenge all of the prosecution exhibits, only exhibits 1, 6, 7, 8 and 9.

a. Computer printouts admissible.

 Exhibits 6, 7, 8 and 9 were uncertified computer printouts.   Exhibit 9 was a California Law Enforcement Telecommunications System (CLETS) computer printout of a criminal information history (rap sheet) for an individual listed as having used three names:  Larry Salvador Martinez, Larry Martinez and Lawrence Salvador Martinez.   John Helbling, a paralegal in the District Attorney's Office, testified he had access to two types of computer systems dealing with criminal history information, a California Department of Justice system and a Los Angeles County Sheriff's system.   Helbling described how he could obtain copies of rap sheets by entering certain data (e.g., name, CII or “main” number,⁵ driver's license number, social security number) into the computer.   He testified if he were asked to get the records of someone with a common name like Larry Martinez he would exercise care, knowing there might be other individuals with the same name.   He described how he had generated each of the challenged printouts:  exhibit 6, a current booking printout;  exhibit 7, a rap sheet from the Sheriff's Department;  exhibit 8, a Department of Motor Vehicles (DMV) printout;  and exhibit 9, a CLETS rap sheet.   Through Helbling's testimony, the prosecution established these documents could be cross-referenced by certain common data, such as the CII or “main” number, date of birth, California driver's license number, and social security number.

The People argue that, given Helbling's testimony, the challenged exhibits were admissible under the official records exception to the hearsay rule (Evid.Code § 1280) ⁶ because:  (1) the trial court implicitly took judicial notice of the various statutes requiring the timely recording and reporting of criminal histories;  (2) such official duties had presumptively been regularly performed by the public employees involved;  and (3) the printouts are inherently trustworthy given the sources of information (e.g., the Superior Court, the DMV), and the fact that none of the information admitted by the trial court reflected the opinions or conclusions of the reporting employees.

Martinez argues Helbling's testimony failed to overcome the concerns expressed by People v. Matthews (1991) 229 Cal.App.3d 930, 280 Cal.Rptr. 134, which held two uncertified computer printouts, used to link Matthews to an alleged alias in a Superior Court record, should not have been admitted, despite testimony from a police department employee the printouts had been made in the regular course of business.

The People point out Matthews was criticized by People v. Dunlap (1993) 18 Cal.App.4th 1468, 23 Cal.Rptr.2d 204, which found a CLETS rap sheet had been properly admitted under the official records exception.   Martinez asks us to reject Dunlap and embrace the reasoning and result in Matthews.

A principal reason for the result in Matthews was the court's conclusion that “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. Matthews, supra, 229 Cal.App.3d at p. 940, 280 Cal.Rptr. 134, citing People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)   But as Dunlap appropriately pointed out, there is “a substantial distinction between cases such as Guerrero ․ where the question is the substance of the prior conviction (i.e., the nature of the conduct giving rise to it), and cases such as Matthews and this one in which the question is the fact of the prior conviction or the additional fact that the defendant served a prison term within the meaning of section 667.5.”  (People v. Dunlap, supra, 18 Cal.App.4th at p. 1476, 23 Cal.Rptr.2d 204.)

Dunlap held a CLETS rap sheet satisfied all the elements of Evidence Code section 1280, relying on the Legislature's enactment of statutes that require the timely recording and reporting of criminal history information (e.g., §§ 11105, 13150, 13151, 13152, 13175, 13176), on the presumption that official duty has been regularly performed (Evid.Code, § 664), and on the trustworthiness of the data, which consists of statistical information, rather than the reporting employees' opinions or conclusions, and whose accuracy can be established by other evidence.  (People v. Dunlap, supra, 18 Cal.App.4th at pp. 1477-1480, 23 Cal.Rptr.2d 204.)

Central to Dunlap 's holding was this description of the statutory scheme for recording and reporting criminal offender information:  “The Legislature has enacted statutes dealing with the recording and reporting of a person's criminal history.   Section 11105 requires the Department of Justice to maintain a master record of information ‘pertaining to the identification and criminal history of any person,’ including information commonly found in rap sheets, and to furnish the information to various public agencies or officers, including district attorneys, ‘when needed in the course of their duties.’ (§ 11105, subds.(a), (b).)   Effective July 1, 1978, the Legislature added chapter 2 to title 3 of part 4 of the Penal Code (commencing with § 13100) providing a comprehensive scheme for the recording, reporting, storage, analysis, and dissemination of criminal offender record information within this state.  (Stats.1973, ch. 992, §§ 1-2, pp.1909-1915.)   As part of that scheme, local criminal justice agencies are required to report to the Department of Justice information concerning arrests and dispositions in certain criminal cases (§§ 13150-13151.1), and detention agencies must report admissions or releases from detention facilities (§ 13152).   Upon request of a criminal justice agency, the Department of Justice must provide the criminal history of a person identified by the agency. (§ 13176.)”  (Id. at pp. 1477-1478, 23 Cal.Rptr.2d 204.)

Dunlap reasoned these statutory obligations fairly gave rise to further inferences regarding the operation of this reporting system.  “Nothing in the statutory provisions expressly directs the Department of Justice to record information received from reporting agencies within any particular time period.   However, a duty to record the information within a short period after its receipt can be reasonably inferred.   The entire statutory scheme for recording and reporting criminal offender record information was enacted in light of legislative findings and declarations, including ‘[t]hat policing agencies and courts require speedy access to information concerning all felony and selected misdemeanor arrests and final dispositions of such cases.’ (§ 13100, subd. (c), italics added.)   Sections 13175 and 13176 require the Department of Justice to furnish information within 72 hours of a request therefor.   Unless the Department of Justice records information from reporting agencies promptly, it will not be in position to furnish complete information within the 72-hour period.”  (Id. at p. 1479, 23 Cal.Rptr.2d 204.)

Based on the reasoning of Dunlap, we hold the trial court properly admitted exhibits 6 through 9.

b. Statistical information in probation report properly admitted.

 Exhibit 1 was the probation report for a “Lawrence Salvador Martinez” in A789375, the case with the missing Superior Court case file.   In conjunction therewith, the People introduced the testimony of Deputy District Attorney Robert Jordan, who had handled case number A789375 in 1986.   Although Jordan did not recall the defendant in that case and could not have identified him in court, he specifically remembered the case and conversations he had with defense counsel about the case.   The defendant pled guilty to assault with a deadly weapon on a peace officer and grand theft of an automobile, and was given a three-year prison sentence.   Jordan testified he had the probation department prepare a pre-plea probation report in the case.

The trial court found exhibit 1 admissible “only ․ as it relates to statistical information, which would be essentially page 1 and the record [of priors], which is found on pages 5 and 6 of that report.”   This ruling did not violate the rule of People v. Reed (1996) 13 Cal.4th 217, 230, 52 Cal.Rptr.2d 106, 914 P.2d 184 (probation report excerpt purporting to describe facts of prior offense was inadmissible multiple hearsay), because the trial court refused to admit those portions of the report having to do with the underlying facts of the charged offense.   The trial court admitted only the criminal history portions of the report, finding those portions “[a]dmissible for [the] statistical information therein contained, as the foundational requirements of [Evidence Code] § 1280 were met given the testimony of witness, Robert F. Jordan, Jr.”

We find the statistical information in the probation report was properly admitted under the official records exception to the hearsay rule.  (Evid.Code, § 1280.)   First, the statistical portion of the probation report was prepared by, and within the scope of the duty of, a public employee, a probation officer.   Jordan testified the report had been prepared by the probation department upon order of the trial court.   Second, the probation report was prepared “at or near the time of the ․ event.”  (Evid.Code, § 1280, subd. (b).)  Jordan testified the court had ordered the report when the case arrived in the Superior Court, and that the report had been prepared by the date of sentencing.   Third, the information was trustworthy in that it did not reflect the opinions or conclusions of the probation officer, who had a duty to employ methods ensuring the accuracy and reliability of the statistical information in the probation report.

c. Sufficient evidence of identity.

 After making its evidentiary rulings, the trial court set out to discover whether, by correlating the data contained in the admissible exhibits, it could determine if the Larry Martinez in the instant case was the same Larry Martinez who had been the subject of case numbers A352194, A438028, A447058 and A789375.   The trial court found 13 signatures among the admitted documents, taken from, e.g., a consent to search form, a booking receipt, and a Miranda waiver card related to the current offense.⁷  Then, relying on Evidence Code section 1417,⁸ the trial court compared the signatures and “found them to be the same.”

One of these signatures was on a Department of Motor Vehicles document which also contained a photograph and a driver's license number.   Booking photos taken at various times, including one related to the current offense, listed the same driver's license number.   The booking photos also included a date of birth.   The probation report in case number A789375 contained a CII number and a date of birth.   In this manner, the trial court was able to cross-reference the following items:  CII number, social security number, driver's license number, date of birth, parents' first names, residence addresses, and periods of time in custody.   As a result of this analysis, the trial court concluded “that indeed the defendant here in court is the same person who was convicted in each of the Los Angeles Superior Court case numbers as charged.”

Martinez does not challenge the validity of the trial court's methodology, which seems to us more than sufficient to prove these were his prior convictions.

3. Sentencing under section 667.7(a)(2).

 Martinez contends the trial court erred by sentencing him under section 667.7 subdivision (a)(2), rather than the less punitive subdivision (a)(1), because one of the three priors-a 1988 conviction by guilty plea to assault with a deadly weapon on a peace officer in violation of former section 245, subdivision (b)-did not qualify under the statute.⁹  If a defendant has suffered only two prior separate prison terms the penalty under section 667.7 is 20 years to life, rather than life without the possibility of parole.

At the sentencing hearing, Martinez argued assault with a deadly weapon upon a peace officer did not come within section 667.7 because subdivision (a) lists “assault with a deadly weapon,” but not “assault with a deadly weapon on a peace officer,” as a qualifying prior.   The trial court rejected this argument, reasoning the additional element of the assault having been on a police officer did not take the crime of assault with a deadly weapon out of subdivision (a).

This result was proper, considering that former section 245, subdivision (a), has been found to be a lesser included offense of former section 245, subdivision (b).  (See People v. White (1980) 101 Cal.App.3d 161, 166, 161 Cal.Rptr. 541 [“If a defendant is charged with violating former section 245, subdivision (b), and the arrest is factually determined to be unlawful, a defendant can be convicted only of a lesser included offense, i.e., section 245, subdivision (a) ․”];  People v. Baca (1966) 247 Cal.App.2d 487, 495, fn. 7, 55 Cal.Rptr. 681 [“We think it clear that subdivision (a) of section 245 describes an offense which is both lesser and included within that described in subdivision (b).   The only difference in the elements of the two offenses is that the crime denounced in subdivision (a) can be committed on any person whereas the crime denounced in subdivision (b) can be committed only upon the person of a peace officer.   But, since peace officers are ‘persons,’ it follows that a violation of subdivision (b) must, of necessity, also constitute a violation of subdivision (a).”].)

Because the only difference between the two offenses is that former subdivision (b) requires the victim to be an on-duty peace officer, Martinez's conviction qualifies as an enumerated felony under section 667.7.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   This description is derived from the probation report, as Martinez pled guilty to all the substantive offenses.

2.   All further statutory references are to the Penal Code unless otherwise specified.

3.   Martinez asserts that under the Three Strikes law, his sentence would have been an indeterminate life term with a minimum term of either 25 years or three times the sentence for the term selected by the trial court as the base term, whichever was greater.   Under section 667.7, Martinez was sentenced to life without the possibility of parole.

4.   Case A438028 involved a 1975 assault with force likely to cause great bodily injury;  A352194 involved a 1979 assault with intent to commit rape;  A447058 involved a 1979 forcible rape and assault with force likely to cause great bodily injury;  A789375 involved a 1986 assault with a deadly weapon on a police officer.   Because the sentence in A352194 ran concurrent with the sentence in A447058, these counted as only a single qualifying prior under section 667.7.   Hence, the trial court found the three qualifying priors required by the habitual offender statute.

5.   Helbling testified CII “stands for California Identification Index and it refers to a defendant's state I.D. for a rap sheet” and that a “main number” is the L.A. County Sheriff's equivalent of a CII number.

6.   Evidence Code section 1280 provides:  “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:  [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

7.   A prosecution witness had testified to watching Martinez sign a consent to search form and a Miranda waiver form, thus establishing the signature of the defendant in the current proceeding.  (RT 147-148)

8.   Evidence Code section 1417 provides:  “The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with handwriting (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.”

9.   All the other charged priors are enumerated in section 667.7:  assault with force likely to cause great bodily injury;  assault with intent to commit rape;  forcible rape.

THE COURT: