PEOPLE v. WOODS (1990)

May the prosecution, over an objection by defense counsel, prove a prior serious felony conviction to enhance a sentence pursuant to Penal Code section 667, subdivision (a) ¹ by way of evidence contained in the preliminary hearing transcript concerning that prior conviction?  People v. Castellanos (1990) 219 Cal.App.3d 1163, 269 Cal.Rptr. 93 holds that it may, even when the evidence admitted would otherwise be inadmissible but for its being used to prove a prior conviction.   Two things prevent us from following Castellanos, due process and the Evidence Code.

Charles Edward Woods, Jr., appeals from the judgment entered following his plea of no contest to robbery with the use of a firearm (§§ 211, 12022.5) and a court trial in which a prior serious felony conviction was found true (§ 667, subd. (a)).

 After Woods admitted the commission of robbery, the People sought to prove a prior conviction for felonious assault with personal use of a firearm.   To prove a section 667, subdivision (a) enhancement based on section 1192.7, subdivision (c)(8) or (c)(23), the prosecution must establish that the defendant personally used a weapon.  (People v. Equarte (1986) 42 Cal.3d 456, 459, 229 Cal.Rptr. 116, 722 P.2d 890;  People v. Piper (1986) 42 Cal.3d 471, 475–476, 229 Cal.Rptr. 125, 722 P.2d 899.)

The People offered the following items to prove the prior serious felony conviction:  the information alleging attempted robbery and felonious assault each with the use of a firearm, the transcript of the plea to felonious assault with a firearm, and evidence contained in the preliminary hearing transcript.   Without the facts contained in the preliminary hearing transcript, the evidence only proved that Woods pled guilty to assault with a firearm.   The attempted robbery and both firearm enhancements were dismissed.   Woods did not admit the use allegation which would establish the offense as a serious felony.   Evidence contained in the preliminary hearing transcript, however, supplied the additional fact that Woods had personally used a firearm in the commission of the robbery.   The court overruled defense counsel's objection to the admission of the preliminary hearing transcript.   This was error.   The preliminary hearing transcript should not have been admitted.

DISCUSSION

Woods contends the trial court erred in taking judicial notice about the contents of the preliminary hearing transcript in the absence of a showing of witness unavailability.

 We agree with Woods that a trial on a prior conviction is no different than any other trial.   A defendant's rights are not jettisoned merely because the trial involves a prior conviction.   The prosecution must charge the prior conviction, and the defendant must be arraigned.  (§§ 969, 969a.)   Defendant has a right to a jury trial (§ 9691/212).   Proof is by competent evidence and beyond a reasonable doubt.  (See Cavassa v. Off (1929) 206 Cal. 307, 313, 274 P. 523.)

 As far as we can determine the Evidence Code is no less applicable to the proof of prior convictions than it is to other trials.   Evidence Code section 1291 permits the admission into evidence of a witness's former testimony provided that the witness is unavailable, and the testimony is offered against a party who has the opportunity to cross-examine that witness.   The Castellanos court itself recognized that in “․ a proceeding where a defendant's guilt on the offense bound over from the preliminary hearing was being litigated ․ the lack of a specific showing of unavailability of the witness would certainly preclude the admission of the preliminary hearing transcripts.”  (People v. Castellanos, supra, 219 Cal.App.3d at p. 1174, 269 Cal.Rptr. 93, citing People v. Winson (1981) 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55.)   As Woods points out, Winson at page 717, 175 Cal.Rptr. 621, 631 P.2d 55 recognizes that the requirement of “unavailability” has due process implications.

Castellanos attempts to distinguish Winson by characterizing a trial for a prior serious felony conviction as a different breed of animal from a trial to determine guilt of that earlier offense.   We think the animal's breed and pedigree are the same in either case.  Castellanos justifies the admission of the preliminary hearing transcript with all its hearsay because it is “not being offered against a defendant in the traditional sense, but ․ merely being offered for the neutral inquiry as to the nature of the earlier offense, i.e., to explain the defendant's conduct” concerning his earlier offense.  (Castellanos, supra, 219 Cal.App.3d at p. 1174, 269 Cal.Rptr. 93.)

The Castellanos court further justifies this radical break with due process and the Evidence Code on the grounds that it “comports with Guerrero's goal of promoting ‘the efficient administration of justice.’ ”  (Ibid.;  see People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)   Efficiency is a worthy goal, but when it's attained at the expense of fundamental rights, the cost is prohibitive.

 The People understandably rely on the cases used by the Castellanos court to support its holding.   We find no reasonable connection between these cases and the Castellanos holding.   It is true that People v. Guerrero, supra, 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150, stated that the trier of fact may look to the entire record of conviction in determining the truth of a prior conviction.   This broad statement does not mean that every document in the superior court file is automatically admissible in evidence, particularly in light of the Guerrero court failing to discuss “what items in the record of conviction are admissible and for what purpose.”  (Id. at p. 356, fn. 1, 243 Cal.Rptr. 688, 748 P.2d 1150.)

In People v. Garcia (1989) 216 Cal.App.3d 233, 236–237, 264 Cal.Rptr. 662, the trial court considered defendant's statements contained in the probation report for purposes of imposing an enhanced sentence.   The appellate court said this was permissible, because even though the probation report contained hearsay, the trial court specifically considered the defendant's statements and found they constituted an admission.   These statements would therefore be admissible as an exception to the hearsay rule.

In People v. Smith (1988) 206 Cal.App.3d 340, 344, 253 Cal.Rptr. 522, it was proper for the trial court to consider the charging allegations for the purpose of explaining Smith's admissions in his Tahl forms.  (See In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449;  see also People v. Colbert (1988) 198 Cal.App.3d 924, 930, 244 Cal.Rptr. 98.)   The trier of fact may consider the accusatory pleading and the defendant's plea of guilty or no contest.   The court may also consider the abstract of judgment and minute orders, which may reflect admissions by the defendant.

In People v. Batista (1988) 201 Cal.App.3d 1288, 248 Cal.Rptr. 46 the court admitted into evidence the entire court file which included the information and the transcript of the hearing relating to a guilty plea.   It was proper for the court to consider the information and a transcript of the guilty plea in determining the nature of the prior conviction.

In cases such as these, portions of the record which contain or elucidate a defendant's admission are admissible as an exception to the hearsay rule.   These cases do not lead to the conclusion that every piece of evidence in the record is admissible.

In People v. Burton (1989) 48 Cal.3d 843, 863, 258 Cal.Rptr. 184, 771 P.2d 1270, the Supreme Court noted that the trial court took judicial notice of the residential nature of defendant's prior burglary convictions from the court file it had before it.   The Burton court did not tell us what in that file the trial court reviewed.  Burton does not hold that the preliminary transcript is automatically admissible to prove a prior conviction.

 As Woods points out, a preliminary hearing is conducted so that the magistrate can determine whether there is sufficient cause to believe defendant guilty of an offense.  (People v. Batista, supra, 201 Cal.App.3d 1288, 1292, 248 Cal.Rptr. 46.)   Although the defendant has the right to cross-examine witnesses, the prosecution's standard of proof is slight and often only the bare skeleton of a case is presented.   Rarely does the defense offer any evidence.   When the defendant pleads guilty to an information, it does not mean he is pleading guilty to all of the facts adduced at the preliminary hearing.

 There may be rare times when the evidence contained in a preliminary transcript may be admissible to prove a prior serious felony conviction.   For example when it is made a part of the plea bargain and thus becomes part of the record of conviction, or when the defendant takes the witness stand and makes an admission that would be relevant to prove the nature of the prior felony conviction.

Neither Guerrero nor Burton hold that the evidence contained in a preliminary hearing transcript may be admitted to prove a prior conviction in all cases.   Until our Supreme Court or the Legislature says otherwise, we should not take such a drastic step in the name of efficiency.

 The California Supreme Court denied review in Castellanos on August 23, 1990.   One should not read too much into the refusal of the Supreme Court to grant review in any given case.   Such refusal is not the court's definitive pronouncement of the law.  (See People v. Triggs (1973) 8 Cal.3d 884, 890–891, 106 Cal.Rptr. 408, 506 P.2d 232.)

The trial court is directed to vacate the five year enhancement per section 667 and to prepare an appropriate abstract of judgment and forward it to the Department of Corrections.   In all other respects, the judgment is affirmed.

FOOTNOTES

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

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.