PEOPLE v. STEPHENS (1995)

OPINION

Richard Allen Stephens appeals his conviction for child molestation and related crimes, with an enhancement for a prior conviction, contending the court erred by failing to strike the conviction.¹  We affirm.

Stephens pleaded guilty to charges of engaging in three acts of oral copulation with his 13–year old daughter, M., engaging in masturbation, sodomy and two acts of oral copulation with his 14–year old son, J., and furnishing methamphetamine and marijuana to J. and C., “a minor.” ²  A prior conviction for sexual assault on a child in Colorado was alleged in the information under Penal Code section 667, subdivision (a),³ making him eligible for an additional five-year term.   Stephens filed a motion to strike the allegation on the ground the Colorado crime did not contain all the elements of section 288, subdivision (a),⁴ the California child molestation felony, as required by section 667.   The prosecutor offered court documents from the previous conviction and the trial court denied the motion.

Stephens concedes an out-of-state prior conviction containing all elements of a California “serious felony,” of which child molestation is one, may be used to enhance a sentence under section 667, subdivision (a), and that the court may look to the “entire record” of the prior conviction to determine if all the elements are present.  (§ 667, subd. (a); ⁵ § 1192.7. subd. (c)(6);   People v. Myers (1993) 5 Cal.4th 1193, 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301.)   But he contends the trial court erred by denying his motion because the record of the prior conviction does not demonstrate the crime he committed in Colorado would have constituted a violation of section 288, subdivision (a).

His claim is two-fold:  (1) the record in the Colorado case does not show the child involved was under 14 years old as section 288, subdivision (a) requires;  and (2) the admissible portion of the record does not show Stephens committed the Colorado sexual assault offense with the specific intent to arouse his passions or the child's, as section 288, subdivision (a) also requires.  (See People v. Rhoden (1989) 216 Cal.App.3d 1242, 1256, 265 Cal.Rptr. 355 [§ 288, subd. (a) requires specific intent].)   He correctly points out the Colorado statute only requires that the minor be under 15 years old and does not require specific intent.  (Colo.Rev.Stats. § 18–3–405(1); ⁶  People v. Salazar (Colo.App.1981) 648 P.2d 157, 159 [statute defines a general intent crime].)

 But a review of the record (People v. Myers, supra, 5 Cal.4th at p. 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301), shows the minor in the Colorado case, C.,⁷ was under 14 years old when Stephens assaulted her.   Stephens admitted furnishing C., a minor, with amphetamine in this case between July and August of 1993.   C. would have been 17 years old at most at that time.   If C. is the Colorado assault victim, she would have been 9 years old at most when that assault occurred in April or March of 1985.

Relying on out-of-state authority, and California cases which might charitably be characterized as “well seasoned” (see, e.g., People v. Foster (1934) 3 Cal.App.2d 35, 39 P.2d 271), Stephens argues the mere identity of the child's first name and last initial are insufficient to establish the two C.'s are the same person.   But there was more.   In the Colorado case, Stephens was also charged with assaulting minors J. and M.   In the present case he admitted molesting J. and M., his children.   It is a near certainty C. is the Colorado victim, his daughter.⁸  The evidence was sufficient to support the trial court's finding.  (See People v. Garcia (1970) 4 Cal.App.3d 904, 911–912, 84 Cal.Rptr. 624 [similarity of names, correlation of age, and identity of crimes committed were sufficient to show defendant was the person who suffered the prior conviction].)

 As to proof showing the requisite intent for a California child molestation, Stephens notes the only evidence he molested C. with lewd intent in Colorado comes from his confession to the police contained in the police reports which were incorporated by reference in the arrest warrant affidavit in the Colorado court file.⁹  He urges the police reports were not a part of the record that could be used in deciding whether the conduct giving rise to the Colorado conviction constituted a violation of section 288, subdivision (a).

In People v. Abarca (1991) 233 Cal.App.3d 1347, 285 Cal.Rptr. 213, we defined “the record of the prior conviction” as “all items that could have been used on appeal of that prior conviction, specifically, any items considered a normal part of the record under California Rules of Court, rule 33 or by which it could be augmented pursuant to California Rules of Court, rule 12.”  (Id. at p. 1350, 285 Cal.Rptr. 213.)   Stephens argues police reports as a part of an arrest warrant do not satisfy that definition.   But rule 33 does specifically list search warrants (Cal.Rules of Court, rule 33(a)(1)(k)), and in any event, the record could be augmented to include an arrest warrant affidavit.  (Cal.Rules of Court, rule 12.) ¹⁰

Stephens argues that to be made a part of the record on appeal, the document must have been considered by the trial court.  (See People v. Brawley (1969) 1 Cal.3d 277, 294–295, 82 Cal.Rptr. 161, 461 P.2d 361 [complaint and arrest warrant were not presented to the trial court and were not a proper part of the record on appeal];  People v. Agnew (1940) 16 Cal.2d 655, 660, 107 P.2d 601 [affidavit was filed after court ruled on issue and was not a proper part of record on appeal].)   But here the arrest affidavit was part of the court file.   Nothing shows it was not considered by the trial court.   Using the language of People v. Abarca, supra, 233 Cal.App.3d 1347, 285 Cal.Rptr. 213, it “could” have been made a part of a record on appeal.  (Id. at p. 1350, 285 Cal.Rptr. 213;  see also People v. Smith (1988) 206 Cal.App.3d 340, 344, 253 Cal.Rptr. 522 [“the trier of fact may consider facts established within the record of conviction, even if those facts were not essential to the judgment”].)   To determine what is part of the “record” in section 667 adjudications, no more is necessary.

 But our inquiry does not end there.   The documents relied on must be admissible and reliable.  (People v. Abarca, supra, 233 Cal.App.3d at p. 1350, 285 Cal.Rptr. 213;  People v. Smith, supra, 206 Cal.App.3d at pp. 345–346, 253 Cal.Rptr. 522.)   The arrest warrant affidavit contained double hearsay, but was subject to exceptions on both counts.   Stephens' statements fell under the admissions and confessions exception (Evid.Code, § 1220), and the affiant's statements qualified as an official record (Evid.Code, § 1280; ¹¹  Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 736–737, 27 Cal.Rptr.2d 712;  Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1373–1374, 240 Cal.Rptr. 281).   The affidavit was made under oath and filed with the court.   The affiant presumably knew a magistrate would review the affidavit before issuing the warrant.   These circumstances demonstrate sufficient reliability in the statement.   Nothing shows Stephens ever disputed it.

These facts adequately distinguish the authority on which Stephens relies, People v. Matthews (1991) 229 Cal.App.3d 930, 280 Cal.Rptr. 134.   In Matthews the court found a “rap sheet” used to establish the prior conviction was never a part of a court record.   It was not made under oath, nor was there any testimony otherwise establishing its reliability.  (Id. at pp. 937–940, 280 Cal.Rptr. 134.)

In reaching our result we do not suggest all information contained in arrest warrant affidavits may be used to establish the facts underlying a prior conviction.   But cases have uniformly upheld the use of defendants' admissions contained in reliable documents to do so.  (See People v. Abarca, supra, 233 Cal.App.3d at p. 1350, 285 Cal.Rptr. 213 and cases cited.)   The circumstances here show admissibility and reliability.

The judgment is affirmed.

FOOTNOTES

1.   The parties, below and on appeal, refer to the proceedings as a motion to strike, but they were in the nature of a court trial, as counsel stipulated below.   The prosecution presented evidence and the argument centered around its sufficiency. *   *   *

2.   On the plea form the words “my 15 yr old daughter” immediately before “[C.]” were lined out.   No explanation for this appears in the record.

3.   All statutory references are to the Penal Code, unless otherwise indicated.

4.   Section 288, subdivision (a) states in relevant part:  “Any person who willfully and lewdly commits any lewd or lascivious act ․ upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony․”

5.   Section 667, subdivision (a) reads in relevant part:  “[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.”

6.   Section 18–3–405(1) defines sexual assault on a child:  “Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.”

7.   While the Colorado case used the full names of the minor victims, the guilty plea in the present case used only the minors' first names and last initials.   In every instance, the first names and last initials in this case correspond exactly to the full names in the Colorado case.   This opinion identifies the minor victims in both cases by a single initial so as to better protect their anonymity.

8.   If death and taxes comprise life's only certainties, the inference C. is the Colorado assault victim must be first on the waiting list.

9.   The clerk's certification of the Colorado documents does not list the arrest warrant affidavit.   Nor does the record reflect whether the police reports were physically attached to the affidavit.   Because these factors were not raised by the parties below or on appeal, we do not address them here.  (People v. Belmontes (1988) 45 Cal.3d 744, 766–767, 248 Cal.Rptr. 126, 755 P.2d 310.)   We assume the defense was satisfied the affidavit and police reports were actually a part of the Colorado court file.

10.   Rule 12 allows for augmentation by “any part of the original superior court file, including any paper or record on file or lodged with the superior court.”  (Cal.Rules of Court, rule 12.)

11.   The section reads:  “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:  [¶] (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;  and [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

WALLIN, Associate Justice.

SILLS, P.J., and CROSBY, J., concur.