PEOPLE v. MACKEY (1999)

OPINION

By information filed in Kern County Superior Court, appellant, Douglas Mackey, was charged with two counts of selling cocaine in violation of Health and Safety Code section 11352, and one count of conspiracy to sell cocaine in violation of Health and Safety Code section 11352, and Penal Code section 182, subdivision (a)(1).   As to each of these counts, it was further alleged that appellant had suffered two prior felony drug-related convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a) and that he had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).   Appellant entered not guilty pleas to all counts and denied each of the enhancements.

Appellant's first jury trial ended in mistrial after the jury could not reach a verdict.

The second jury found appellant guilty of both sales offenses but deadlocked on the conspiracy charge which was ultimately dismissed in the interest of justice.   In a bifurcated proceeding, the jury found all eight enhancements to be true.

Imposition of judgment took place on May 29, 1997.   Appellant was denied probation, ordered imprisoned for a total term of 13 years and, without defense challenge, awarded 175 days of actual custody credit and 86 days of good time/work time credit.

Notice of appeal was timely filed on June 2, 1997.   We affirm.¹

FACTS **

DISCUSSION **

VSUFFICIENCY OF THE EVIDENCE TO PROVE THE 1978 PRIOR FELONY

As to Counts One and Two in the information, it was alleged that appellant was, “on or about December 13, 1978, in the Superior Court of the County of Kern, Case number SC19740, State of California, convicted of a violation of Health and Safety Code section 11378, within the meaning of section 11370.2(a) of the Health and Safety Code.” ⁹

Appellant claims the only evidence admitted to prove the truth of this allegation was a minute order from Kern County case number 19740 that showed that someone named Douglas Mackey was sentenced on January 10, 1979, for a violation of Health and Safety Code section 11378.   He believes this was insufficient to satisfy the State's burden of proving beyond a reasonable doubt the truth of the prior conviction allegation.

Health and Safety Code section 11370.2, subdivision (a), the enhancement at issue in this case, has at all relevant times provided that “Any person convicted of … [Health and Safety Code] Section … 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of … [Health and Safety Code] Section … 11378 …, whether or not the prior conviction resulted in a term of imprisonment.”   Subdivision (d) states that this enhancement “shall be pleaded and proven as provided by law.”

 The parties agree that, to establish the truth of a prior conviction allegation, the prosecutor had the burden of proving, beyond a reasonable doubt, each element of the enhancement, i.e., the defendant was convicted, the conviction was for an offense within the definition of the particular statute invoked, and any other element required by the statute alleged (e.g., proof defendant served a term in state prison if that is an element of the enhancement).  (People v. Haney (1994) 26 Cal.App.4th 472, 475, 31 Cal.Rptr.2d 547.)   As we noted in Haney, this is generally accomplished by the prosecutor “introduc[ing] certified copies of the abstract of judgment and records of the Department of Corrections showing imprisonment.  [Citations.]”  (Id. at p. 475, 31 Cal.Rptr.2d 547.)   However, certified copies of other official records may be used as well.  (See e.g., People v. Woodell (1998) 17 Cal.4th 448, 458, 71 Cal.Rptr.2d 241, 950 P.2d 85 [appellate court decision used to prove prior conviction qualified as a violent or serious felony under the Three Strikes law];  People v. Reed (1996) 13 Cal.4th 217, 223-230, 52 Cal.Rptr.2d 106, 914 P.2d 184 [limited use of preliminary hearing transcript from prior conviction to prove it qualified as a serious felony under § 667, subd. (a) ];  People v. Dunlap (1993) 18 Cal.App.4th 1468, 23 Cal.Rptr.2d 204 [California Law Enforcement Telecommunications System (CLETS) printout used to prove fact, as opposed to substance, of the prior conviction].)

 In Dunlap, we observed that a critical distinction exists between those cases involving proof of the substance of the prior conviction (i.e., the nature of the conduct which gave rise to it) and those involving the mere fact of the prior conviction.  (People v. Dunlap, supra, 18 Cal.App.4th at p. 1476, 23 Cal.Rptr.2d 204.)   In the former type of case, there will be times when the statutory definition of the qualifying prior conviction is not completely congruent with the definition of the crime of which the defendant stands previously convicted.   When that occurs, a trier of fact can only “ ‘look to the entire record of conviction’ ” but “ ‘no further.’ ”  (People v. Woodell, supra, 17 Cal.4th at p. 452, 71 Cal.Rptr.2d 241, 950 P.2d 85, quoting People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150, italics deleted.)   This rule, the high court explained:

“ ‘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” [the prior at issue in Woodell ] a term that refers to conduct, not a specific crime.   To allow the trier of fact 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.’ ”  (People v. Woodell, supra, 17 Cal.4th at pp. 452-453, 71 Cal.Rptr.2d 241, 950 P.2d 85, quoting People v. Guerrero, supra, 44 Cal.3d at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)

“But no such danger is present when evidence other than court or prison records is used only to establish the fact of conviction.…” (People v. Dunlap, supra, 18 Cal.App.4th at p. 1476, 23 Cal.Rptr.2d 204, italics added.)   This realization led us to conclude in Dunlap that other types of evidence (e.g., other official records) could be relied on to establish the fact of a prior conviction provided the evidence satisfied the applicable rules of admissibility.  (Ibid.) Relying on the official records exception to the hearsay rule (Evid.Code, § 1280), the presumption that official duties are regularly performed (Evid.Code, § 664), and judicial notice of various statutes that impose a duty on the state to maintain criminal histories for those who commit crimes within its borders and those that provide local criminal justice agencies with access to that history (Evid.Code, § 451, subd. (a);  Pen.Code, §§ 11105, 13150-13151.1, 13175, 13176), we upheld the use of a certified CLETS printout to prove the fact of a prior conviction.  (Dunlap, supra, 18 Cal.App.4th at p. 1481, 23 Cal.Rptr.2d 204.)

 In this case, we take our decision in Dunlap one step further and hold that, in determining the fact of a prior conviction, the trier of fact is not restricted to the official records produced as a direct result of the particular prior conviction at issue, but may also consider the official records that are introduced to prove the fact of any other prior convictions that are themselves at issue in the trial provided those documents satisfy the rules governing their admissibility.

 Applying this principle and the reasoning employed in Dunlap, supra, 18 Cal.App.4th 1468, 23 Cal.Rptr.2d 204, leads us to conclude that, in determining the fact of the 1978 prior conviction allegation, the jury could consider those documents directly related to this conviction;  namely, the January 10, 1979, minute order in Kern County Superior Court case number 19740 that showed Douglas Mackey was placed on probation for three years and ordered to serve nine months in the custody of the local sheriff for having violated Health and Safety Code section 11378 and the certified CLETS printout for Douglas Mackey, a Black man with a date of birth of May 12, 1957, and a California Department of Corrections (CDC) number of D093105, that listed the identical conviction and sentence.

The jury could also consider the properly admitted CLETS printout and the Penal Code section 969b packet (i.e., the CDC records) as they related to appellant's other prior convictions as further proof that appellant was the person who had suffered the 1978 conviction.   The CDC records contained the very same CDC number (D093105) and date of birth (May 12, 1957) as that shown in the CLETS printout which listed the 1978, the 1988, and the 1991 prior convictions alleged in the present information.   The fingerprint expert confirmed that the prints found on the fingerprint cards that were included in the Penal Code section 969b packet belonged to appellant.

The foregoing official records evidence (Evid.Code, § 1280), when considered in combination with the presumption that official duties are regularly performed (Evid.Code, § 664), judicial notice of the various statutes that impose a duty on the state to maintain criminal histories for those who commit crimes within its borders and those statutes that provide local criminal justice agencies with access to that history (Evid.Code, § 451, subd. (a);  Pen.Code, §§ 11105, 13150-13151.1, 13175, 13176) and our Supreme Court's repeated recognition that fingerprints are the strongest evidence of identity (e.g., People v. Andrews (1989) 49 Cal.3d 200, 211, 260 Cal.Rptr. 583, 776 P.2d 285;  People v. Johnson (1988) 47 Cal.3d 576, 601, 253 Cal.Rptr. 710, 764 P.2d 1087;  People v. Gardner (1969) 71 Cal.2d 843, 849, 79 Cal.Rptr. 743, 457 P.2d 575), were sufficient to prove the truth of the 1978 conviction beyond a reasonable doubt.   Hence, appellant's claim is rejected.

VI ***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   A discussion of the facts in the instant case is not included in the published portion of this opinion in that it is not relevant to the published issue.

FOOTNOTE.   See footnote *, ante.

9.   Even though this allegation was also made in connection with Count Three, we are only concerned with those counts on which a true finding was made at trial.

FOOTNOTE.   See footnote *, ante.

ARDAIZ, P.J.

THAXTER, J., and BUCKLEY, J., concur.