PEOPLE v. CRUZ (1992)

Opinions of the Court of Appeal elucidate legal principles and often enlighten readers about the application of those principles through a particular set of facts.   The opinions establish precedent for future cases and give continuity and coherence to the law.

 Despite the value and importance of a Court of Appeal opinion, here we hold it is not adequate proof that a defendant has suffered a prior serious felony conviction within the meaning of Penal Code sections 667, subdivision (a),¹ and 1192.7, subdivision (c)(23).

Jose Luis Cruz appeals from the judgment entered upon his conviction by jury of felonious assault during which he inflicted great bodily injury, with a finding by the court of a prior serious felony conviction.  (§§ 245, subd. (a)(1);  12022.7;  667, subd. (a).)

He contends, among other things, it was error to admit a Court of Appeal opinion to prove the prior serious felony conviction.   He also contends the evidence was insufficient to prove his prior conviction of a serious felony, and the court's refusal to rule on the admissibility of his prior conviction constitutes reversible error.

We agree that the evidence was not sufficient to prove his prior conviction of a serious felony and therefore strike his sentence enhancement.

FACTS

On the evening of November 7, 1990, Cruz and Vanessa Hernandez left their residence and drove to a birthday party.   During the evening, both drank beer and an argument ensued.   When they left the party at approximately 2 a.m., the argument continued in the car.   Cruz, who was driving, struck Hernandez in the face.   She put her hand up and might have scratched him around the eyes.   In order to avoid further blows, Hernandez left the car, but Cruz chased her and threw her to the ground.   He then kicked her in the face several times.

Cruz fled on foot and Hernandez drove home.   She was taken to the hospital, where X-rays and a CAT scan revealed fractures of the orbit of the left eye, the nose and the left cheekbone.   Hernandez testified that Cruz had struck her on previous occasions.   She conceded she saw him on several occasions after the assault, and while he was in jail, she honored his request to mail him a photograph of him and her children.

Prior to the beginning of the People's case, Cruz moved to preclude impeachment by use of his prior felony conviction for felonious assault.   The court declined to rule and permitted Cruz to renew the motion at the end of the People's case.   When the People rested, Cruz renewed his motion and indicated that he would testify Hernandez struck him and scratched his face, causing the car he was driving to go nearly out of control.   When, outside the car, she continued to strike him, he pushed her to ward her off and she fell, striking the ground.

After much debate about the admissibility of the prior conviction, the trial judge revealed his inclination not to let the prior in, but nevertheless, decided to keep his options open.   Referring to People v. Washington (1989) 211 Cal.App.3d 207, 259 Cal.Rptr. 307, the trial judge ultimately decided he would await Cruz's testimony before making the final decision on the admissibility of the prior.   The stakes were too high for Cruz and he did not testify.

The information alleged that Cruz had suffered a prior serious felony conviction for assault with a deadly weapon in 1983 for which he served a prison term within the meaning of sections 667, subdivision (a), and 667.5, subdivision (b).²  Cruz waived jury trial on the prior conviction allegations.

To prove the allegations of the prior conviction, the People introduced the following:  The information, the verdict form, certified records from the Department of Corrections establishing that Cruz had been imprisoned per section 969b, and an opinion affirming the judgment written by Division One of the Fourth District of the California Court of Appeal (People v. Cruz (Sept. 19, 1984) D000388 [nonpub. opn.] ).

The information in that prior case charged in count 1 that Cruz “did assault another with a deadly weapon and instrument ․ To wit:  a knife.”   The verdict form indicated that the jury found defendant “guilty of the crime of Assault with a Deadly Weapon ․ as charged in Count One of the information.”

The appellate opinion was admitted into evidence over Cruz's objection as to relevancy and foundation.   The terse opinion of six short paragraphs stated that Cruz “stabbed [his girlfriend] six times with a knife after she rejected his advances․”  The appellate court concluded there were no arguable appellate issues pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.

The trial court found the allegation that Cruz had been convicted of a serious felony as defined by section 1192.7, subdivision (c) to be true.   In arriving at his decision, the trial judge stated he could look at the entire record of the prior conviction which included the Court of Appeal opinion.   The court imposed a five-year term for the prior serious felony conviction and stayed a one-year term for the prior prison term enhancement.

DISCUSSION

To determine the truth of a prior conviction, “the trier of fact may look to the entire record of the conviction.”  (People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)   As the People point out, the Courts of Appeal have enlightened us on what constitutes the record of conviction.   Courts have looked to the information, People v. Skeirik (1991) 229 Cal.App.3d 444, 462, 280 Cal.Rptr. 175;  probation reports, People v. Goodner (1990) 226 Cal.App.3d 609, 616, 276 Cal.Rptr. 542;  preliminary hearing transcripts, People v. Castellanos (1990) 219 Cal.App.3d 1163, 1172, 269 Cal.Rptr. 93;  abstracts of judgment, People v. Johnson (1989) 208 Cal.App.3d 19, 26, 256 Cal.Rptr. 16;  minute orders, People v. Harrell (1989) 207 Cal.App.3d 1439, 1444, 255 Cal.Rptr. 750;  change of plea forms, People v. Carr (1988) 204 Cal.App.3d 774, 778, 251 Cal.Rptr. 458;  and even a brief statement of views concerning the defendant and the crime committed filed by the judge and the district attorney pursuant to section 1203.01, People v. Johnson, supra, 208 Cal.App.3d 19, 26, 256 Cal.Rptr. 16.

Although the list as to what makes up the record of conviction may be large and ever expanding, as the People suggest, it does not include a Court of Appeal opinion.   The opinion is not a part of the record of conviction, but is, as Cruz points out, a summary of what occurred in the trial court leading up to the conviction.   Depending upon the case, the facts are gleaned from a variety of sources, including the reporter's and clerk's transcripts.   The parties' briefs may lead or mislead as to what are the material and significant facts.

Court of Appeal opinions usually arrive at the correct result.   But as useful and important as they are, they are not infallible.   Some turn out never to have existed.  (See Cal.Rules of Court, rules 976, 979.)   Some should be appealed, but are not, even though the opinions contain factual or legal errors.

“A judicial opinion may be defined as a reasoned elaboration, publicly stated, that justifies a conclusion or decision.”  (Aldisert, Opinion Writing (1990) p. 9.)   There are numerous other views of what an opinion is or what it should be.  (See Witkin, Manual on Appellate Court Opinions (1977) p. 62;  Lefler, Appellate Judicial Opinions, (1974) ch. 4, p. 79.)   However philosophical or mundane the definition is, an appellate opinion is precisely what it is called, an opinion.   If anything, it is a guide to the law, not proof of the facts.   The facts that give rise to the legal conclusion of an opinion have been selected by the author.   Without the opportunity to cross-examine the author, it is often difficult to tell the source from which the facts come.

The Court of Appeal opinion here is somewhat like the probation report in People v. Williams (1990) 222 Cal.App.3d 911, 917, 272 Cal.Rptr. 212.   The probation report contained triple hearsay.   The Court of Appeal held that the triple hearsay was unreliable and untrustworthy evidence to prove the enhancement.  (Id. at pp. 917–918, 272 Cal.Rptr. 212.)

Of course probation reports in which the defendant admits facts that constitute the charge which is the basis for an enhancement are a different story.   In People v. Garcia (1989) 216 Cal.App.3d 233, 237, 264 Cal.Rptr. 662, the defendant made admissions to the probation officer which were stated in the probation report.   The Court of Appeal held the probation report was properly admitted into evidence.

Unlike the facts in Garcia, in Williams a multiple hearsay statement was attributed to the victim in the probation report.  (People v. Williams, supra, 222 Cal.App.3d 911, 917, 272 Cal.Rptr. 212.)   The probation report in Williams, like the Court of Appeal opinion here, contained hearsay for which there is no exception.  Evidence Code section 1220, provides that party admissions are an exception to the hearsay rule, but such exceptions could not apply in Williams nor can they apply here.  Williams points out “[a]s with all enhancements, the state must prove the elements of a prior conviction enhancement true beyond a reasonable doubt.  [Citations.]”  (Id. at p. 915, 272 Cal.Rptr. 212.)   To allow the People to prove the prior conviction true by way of the Court of Appeal opinion would be to substantially reduce the prosecution's burden of proof.

 The People argue that Williams does not apply here because there is other evidence which confirms the statement in the Court of Appeal opinion that Cruz stabbed his girlfriend six times.   That evidence, argue the People, is the information and the verdict.

We disagree.   The information from the prior conviction stated:  “On or about May 28, 1983, [defendant Cruz] did assault another with a deadly weapon and instrument, and by means of force likely to produce great bodily injury, in violation of Penal Code section 245(a)(1).   To wit:  a knife.”   The verdict found Cruz guilty of the crime “as charged in Count One of the information.”   Although the information does use the word “knife,” Cruz is correct that the information did not allege personal use of a weapon.   He could have been convicted of assault with a deadly weapon by aiding and abetting one who used a weapon.  (People v. Piper (1986) 42 Cal.3d 471, 475–476, 229 Cal.Rptr. 125, 722 P.2d 899;  People v. Williams, supra, 222 Cal.App.3d 911, 914–915, 272 Cal.Rptr. 212.)   A conviction of section 245, subdivision (a)(1) is not a conviction of a prior serious felony pursuant to sections 667 and 1192.7.   In order for it to be so, the People must plead and prove defendant's personal use of a dangerous or deadly weapon.   (People v. Equarte (1986) 42 Cal.3d 456, 465, 229 Cal.Rptr. 116, 722 P.2d 890.)   The People never proved that Cruz personally used a dangerous or deadly weapon.

This case is not like People v. Skeirik, supra, 229 Cal.App.3d 444, 280 Cal.Rptr. 175, relied on by the People.   In Skeirik the information charged defendant had committed robbery “while ‘using a deadly weapon, to wit:  a pistol.’ ”  (Id. at p. 462, 280 Cal.Rptr. 175.)   The information here only alleges that a knife was involved in the prior charge of assault with a deadly weapon.   That does not necessarily mean that Cruz personally used the knife.  (See People v. Equarte, supra, 42 Cal.3d 456, 465, 229 Cal.Rptr. 116, 722 P.2d 890.)

 In light of our ruling we need not dwell on Cruz's remaining contention.   Suffice it to say, the trial court could defer ruling on the admissibility of Cruz's prior convictions until after he testified.  People v. Washington, supra, 211 Cal.App.3d 207, 259 Cal.Rptr. 307 found that it is not error for a trial court to refuse to rule on a defendant's motion to exclude evidence of a prior conviction until after he has testified.  (Id. at p. 214, 259 Cal.Rptr. 307.)   Both Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 and People v. Collins (1986) 42 Cal.3d 378, 388, 228 Cal.Rptr. 899, 722 P.2d 173, hold that defendant must testify to preserve for the appellate record a claim of improper impeachment with a prior conviction.  (Luce, supra, 469 U.S. at p. 43, 105 S.Ct. at p. 464;  Collins, supra, 42 Cal.3d at p. 388, 228 Cal.Rptr. 899, 722 P.2d 173.)   We agree with the People that whether a trial court denies a defendant's request to rule on the admissibility of the prior before the defendant testifies, or defers such a ruling, the result is the same.   The defendant knows he cannot testify with the assurance that the prior convictions will not be introduced.

The judgment is modified by striking the five-year sentence enhancement under sections 667, subdivision (a) and 1192.7, subdivision (c)(23).   As so modified, the judgment is affirmed.   The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections.

FOOTNOTES

1.   All references are to the Penal Code unless otherwise stated.

2.   Section 667, subdivision (a) provides for a five-year enhancement for certain crimes, one of which is a felony in which defendant personally used a dangerous or deadly weapon.   Section 667.5, subdivision (b) provides for a one-year enhancement for each prior prison term served under certain circumstances.

GILBERT, Associate Justice.

STONE, P.J., and YEGAN, J., concur.