People v. Morris

Opinion

Defendant was convicted by jury trial of grand theft (Pen. Code, § 487, subd. (a))^[1] and receiving stolen property (§ 496, subd. (a)); two prison prior allegations (§ 667.5, subd. (b)) were found true by the court.^[2] Defendant was sentenced to four years in state prison.^[3] On appeal defendant

FACTUAL BACKGROUND

Defendant was stopped by the Vallejo Police Department for a traffic infraction. He was unable to produce his driver’s license or any other form of identification (he claimed his wallet had been stolen). Defendant indicated that he was going to the store to purchase food, but had no money on his person. The police officer had defendant leave his vehicle and searched him, finding a 12-inch crowbar or “nail puller” in his rear pocket. Another officer searched defendant’s car and recovered bolt cutters, a pair of gloves, and eight new car keys (some of which were remote or keyless entry keys). A women’s purse was also recovered. Defendant subsequently admitted stealing the car keys and other items from Nino’s Quality Motors, a car dealership that had earlier reported the theft of the property.

Jamal Zumot, a part owner of Nino’s, whose duties included some bookkeeping, testified that he was aware of the prices of the stolen items and estimated that the buffers that were taken were “fairly new” and that it would cost $1,500 to replace each one, the dolly had a value of $50, the two CD changers had a value of $1,000 each, the heat gun was valued at approximately $50, the drill at $40, the spray gun at approximately $600, and the nine keys had a total value of $1,000. In estimating the value of the keys, Zumot relied upon invoices that he had for them and detailed their individual value.^[4] The keys belonged to cars that the dealership had just received. Defendant did not have permission from the dealership to remove any of the stolen items.

DISCUSSION

A.-C.^[5]

Defendant’s final contention is that the trial court erred in admitting a certified California Law Enforcement Communications System (CLETS) rap sheet^[6] as proof of his alleged prison priors. He objected below that the exhibit was not reliable. The prosecutor argued that, pursuant to People v. Dunlap (1993) 18 Cal.App.4th 1468 [ 23 Cal.Rptr.2d 204 ], the rap sheet was admissible to prove that defendant had served a separate prison term for each alleged prior conviction and that he had not stayed free of prison custody for a five-year period (elements of the allegation of the prior prison conviction pursuant to § 667.5, subd. (b)). On appeal, defendant contends that the admission of the rap sheet violated his Sixth Amendment right to confrontation, citing Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177 , 124 S.Ct. 1354 ] (Crawford).

First, as respondent argues, this objection was not raised below and is therefore not preserved for appeal. (See People v. Rowland (1992) 4 Cal.4th 238 , 265, fn. 4 [ 14 Cal.Rptr.2d 377 , 841 P.2d 897 ]; People v. Chaney (2007) 148 Cal.App.4th 772 , 777-779 [ 56 Cal.Rptr.3d 128 ].) However, even if we concluded (as defendant argues) that his attorney’s objection below on the grounds of “reliability” was sufficient to preserve this issue, we would conclude that the admission of the rap sheet was not error.

CLETS rap sheets have been found to be admissible under the public records exception to the hearsay rule (Evid. Code, § 1280). As defendant notes, People v. Martinez (2000) 22 Cal.4th 106 , 113, 119 [ 91 Cal.Rptr.2d 687 , 990 P.2d 563 ] upheld a trial court finding that a CLETS rap sheet satisfied the requirement that, in order to be admissible under the public records exception to the hearsay rule, the entries in the record must have been made at or near the time of event recorded. The earlier case of People v. Dunlap, supra, 18 Cal.App.4th 1468 , relied upon by the prosecutor below in the present case, held that a CLETS rap sheet was admissible to demonstrate that the defendant had served separate prison terms within the meaning of section 667.5, subdivision (b), as it was properly admitted under the public records exception to the hearsay rule. Both cases relied in part upon tire statutory reporting and recording duties in the CLETS implementing legislation, and upon the presumption that official duties are properly performed under Evidence Code

As defendant concedes, this very issue was decided adversely to him in People v. Taulton (2005) 129 Cal.App.4th 1218 , 1224 [ 29 Cal.Rptr.3d 203 ] (Taulton). The Taulton court found that the admission of a rap sheet under the public records exception to the hearsay rule was not error under Crawford, supra, 541 U.S. 36 , as it was not “ ‘testimonial’ ” hearsay. (Taulton, at p. 1222.) As the court in Taulton explained, “Crawford unequivocally holds that ‘testimonial statements’ may not be admitted unless the defendant had an opportunity to cross-examine the person whose hearsay testimony is sought to be introduced. . . . But the line grows dim when one seeks in vain for a definition of ‘testimonial statements.’ ” (Taulton, supra, at p. 1222.) The Taulton court goes on to conclude that, “Crawford supports a conclusion that the test for determining whether a statement is ‘testimonial’ is not whether its use in a potential trial is foreseeable, but whether it was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue.” (Id. at p. 1224.) Taulton found that rap sheets (admissible as public records) are similar to business records, which the court in Crawford cited as an example of nontestimonial evidence. (Crawford, supra, 541 U.S. at p. 56.)^[7] Rap sheets are “not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue.” (Taulton, supra, at p. 1225.) Defendant here argues that Taulton was wrongly decided, citing the more recent California Supreme Court case of People v. Geier (2007) 41 Cal.4th 555 [ 61 Cal.Rptr.3d 580 , 161 P.3d 104 ] (Geier).

Defendant is correct that we have further guidance, both from the California Supreme Court and the United States Supreme Court, to aid in our analysis of what constitutes “testimonial hearsay,” than did the court at the time the Taulton case was decided. The California Supreme Court in Geier, supra, 41 Cal.4th 555 , applied the Davis case (Davis v. Washington (2006) 547 U.S. 813 [ 165 L.Ed.2d 224 , 126 S.Ct. 2266 ] (Davis)) and concluded that admission of

Second, defendant’s interpretation of the applicability of Geier in the present case is not logical. Defendant argues specifically that because the entries in the rap sheet were not made contemporaneously with the events recorded, the rap sheets are testimonial under the Geier three-part test set forth above. The DNA report in Geier was not testimonial, he argues, “because it ‘constitutes a contemporaneous recordation of observable events rather than the documentation of past events.’ ” Thus, he reasons, the rap sheet is testimonial as “entries may be made 30-90 days after the event . . . by persons who did not personally observe the event.” If the Geier test and reasoning were applied as argued by defendant, in order to meet the “contemporaneous” requirement, the reporting and entry of data reflected in a rap sheet would have to be made contemporaneously with the events such as a defendant’s arrest, conviction, sentencing, admission to state prison, etc., by the person who personally observed the event. That type of immediate reporting of the data collected under the CLETS system is extremely impracticable if not wholly impossible.

There are additional reasons why rap sheets are not the type of testimonial hearsay to which Crawford was meant to apply. As previously indicated, the California Supreme Court in People v. Martinez, supra, 22 Cal.4th 106 discussed CLETS rap sheets at length. In Martinez, an employee of the district attorney’s office familiar with accessing the CLETS system testified as background information regarding the CLETS system. The trial court took judicial notice of certain statutes which imposed obligations on law enforcement agencies to compile and report criminal history information into the CLETS system. For our purposes here, suffice it to say that the source of the information contained in a CLETS rap sheet is varied, as police agencies are required to report arrests occurring in their jurisdiction, courts are required to report conviction and sentencing information from their jurisdictions, detention facilities are required to report admissions and releases from detention facilities, and the Department of Justice (DOJ) is required to compile information gathered from these various sources and to supply it by means of the automated rap sheet system to requesting law enforcement agencies,

First, the statements contained in these compilations of data are not statements of the type addressed in Crawford, or Davis, as they are not analogs for testimony at trial—statements made with the solemnity associated with testimony at trial. They are mere compilations of statistical data as detailed above. Further, the mere fact that the information contained in a rap sheet necessarily relates to past events does not mean that it “describes a past fact related to criminal activity” for potential use at trial, as described in Geier’s three-part test for whether or not DNA reports are testimonial hearsay. (Geier, supra, 41 Cal.4th at p. 605, italics added.) The past facts being communicated in a rap sheet are not facts relating to the charged criminal activity, such as a victim’s statement to the police or a laboratory technician’s DNA analysis that implicates the defendant in the charged offense. While the historical data in a rap sheet regarding a defendant’s past arrests, convictions, sentences, and periods of imprisonment may include the names of crimes that a defendant was arrested for, convicted of, and sentenced or imprisoned for, they do not communicate facts about the underlying criminal activity.

Finally, if CLETS rap sheets were determined to be testimonial hearsay, the results would be absurd. Were Crawford to apply to such compilations of information, the hearsay declarants would either have to testify at trial, or be unavailable to testify with defendant’s having had the prior opportunity to cross-examine them, in order not to violate defendant’s confrontation rights. Rap sheets involve multiple levels of hearsay. For example, an entry documenting a defendant’s arrest for robbery may trace its source through the arresting officer who files a police report, to a data entry clerk at the police department who completes a form documenting the arrest and forwards it to DOJ, through a clerk at DOJ who receives the report and enters the information into its computer system. Any CLETS rap sheet, and indeed any one entry or series of entries relating to a single conviction recorded in the rap sheet, may implicate several hearsay declarants. Would each such declarant have to testify (or would the defendant have had the opportunity to cross-examine each unavailable declarant)?^[10]

For all these reasons, we conclude the Taulton court was correct in holding that CLETS rap sheets are not testimonial hearsay and their admission did not violate defendant’s right to confront and cross-examine the witnesses against him under Crawford, supra, 541 U.S. 36 .