Filed 9/3/13 P. v. Francisco CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B242703
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA080090)
v.
TITUS ADRIAN FRANCISCO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
James R. Dabney, Judge. Affirmed as modified.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Esther P.
Kim, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
A jury convicted defendant Titus Francisco of one count of second degree
commercial burglary in violation of Penal Code section 459.1 In a bifurcated proceeding,
the trial court found 11 prior prison term allegations to be true but subsequently struck
one of the allegations on the court‟s own motion. The trial court sentenced defendant to a
total term of 12 years in state prison. The sentence consisted of the midterm of two years
in count 1, plus one year each for the 10 prior prison term enhancements.
Defendant appeals on the ground that the evidence was insufficient to support
certain of the trial court‟s findings on the prior prison term allegations, resulting in a
violation of his right to due process.
FACTS
Prosecution Evidence
On February 17, 2012, Ismael Parra was working at the El Segundo Best Buy
store. Parra observed a man, later identified as defendant, kneeling in front of a display
case. Defendant appeared to be trying to pry open a laptop box. Para noticed that the
box was missing its extra security device called a “spider wrap” that is supposed to
prevent the box from being opened. Parra approached defendant and asked if he needed
help. Defendant appeared startled and muttered something before walking away with the
laptop box. Parra contacted loss prevention services and asked them to keep an eye on
defendant and the laptop.
Stephanie Hammond, the store manager, was alerted to the situation. She went to
the loss prevention desk to view a monitor showing defendant walking around the store
with a white box. Hammond saw defendant approach the cash register. She saw him
place the laptop box “underneath the register” at a point where the cashier could not see
it. Defendant purchased a drum skin from the musical instruments section while keeping
the laptop box out of sight. When the transaction was complete, Hammond approached
defendant and asked him if he was going to pay for the laptop. Defendant said, “„This is
1 All further references to statutes are to the Penal Code unless stated otherwise.
2
mine. I was returning it.‟” When Hammond asked if defendant had obtained a pink
sticker that is placed on all returns by customer service, defendant then said “no” and that
he had just purchased it. Hammond said she needed to see a receipt or she would have to
review videotape of defendant coming in with the laptop.2 Defendant kept saying, “„I‟ll
just go get my receipt‟” and began leaving the store. Defendant left the laptop box. An
associate later found a spider wrap in the computer section. Another associate followed
defendant through the parking lot and saw defendant enter a car driven by a female.
Based on the description of the car and the occupants, the police later pulled over the car
in which defendant was riding. The retail value of the laptop was approximately $900.
Defense Evidence
Defendant presented no evidence in his defense.
DISCUSSION
I. Defendant’s Argument
Defendant argues that a report from the California Law Enforcement
Telecommunications System (CLETS), standing alone, is not evidence that is reasonable,
credible, and of solid value such that a rational trier of fact could find that he suffered a
prior conviction within the meaning of section 667.5, subdivision (b). He maintains that
the trial court‟s reliance on this evidence violated his due process right to acquittal except
upon proof beyond a reasonable doubt of the truth of the allegations against him.
II. Relevant Authority
At the time of defendant‟s sentencing hearing (July 2012), section 667.5,
subdivision (b) provided in pertinent part as follows: “Except where subdivision (a)
[pertaining to a „violent‟ new offense] applies, where the new offense is any felony for
which a prison sentence or a sentence of imprisonment in a county jail under subdivision
(h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any
other sentence therefor, the court shall impose a one-year term for each prior separate
2 Hammond‟s subsequent review of the videotape showed defendant entering the
store with nothing in his hands.
3
prison term or county jail term imposed under subdivision (h) of Section 1170 or when
sentence is not suspended for any felony; provided that no additional term shall be
imposed under this subdivision for any prison term or county jail term imposed under
subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of
five years in which the defendant remained free of both the commission of an offense
which results in a felony conviction, and prison custody or the imposition of a term of jail
custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not
suspended. . . .” Due process requires proof of each of these elements in order to impose
the enhancement. (People v. Tenner (1993) 6 Cal.4th 559, 563, 566.)
“The prosecution has the burden of proving beyond a reasonable doubt each
element of the section 667.5, subdivision (b) sentence enhancement, including the fact of
no five-year „washout‟ period. [Citation.] When, as here, a defendant challenges on
appeal the sufficiency of the evidence to sustain the trial court‟s finding that the
prosecution has proven all elements of the enhancement, we must determine whether
substantial evidence supports that finding. The test on appeal is simply whether a
reasonable trier of fact could have found that the prosecution sustained its burden of
proving the enhancement beyond a reasonable doubt. In that regard, in conformity with
the traditional rule governing appellate review, we must review the record in the light
most favorable to the trial court‟s finding(s).” (People v. Fielder (2004) 114 Cal.App.4th
1221, 1232.)
Although “the state has the burden of proving that a defendant suffered a prior
conviction within the meaning of section 667.5, the usual rules of evidence are applicable
to assist the prosecution in presenting a prima facie case. Thus, a court is allowed to
make reasonable inferences from the facts presented.” (People v. Elmore (1990) 225
Cal.App.3d 953, 959; see also People v. Delgado (2008) 43 Cal.4th 1059, 1066.)
At the time of defendant‟s sentencing hearing, section 969b provided: “For the
purpose of establishing prima facie evidence of the fact that a person being tried for a
crime or public offense under the laws of this State has been convicted of an act
punishable by imprisonment in a state prison, county jail or city jail of this State, and has
4
served a term therefor in any penal institution, or has been convicted of an act in any
other state, which would be punishable as a crime in this State, and has served a term
therefor in any state penitentiary, reformatory, county jail or city jail, or has been
convicted of an act declared to be a crime by any act or law of the United States, and has
served a term therefor in any penal institution, the records or copies of records of any
state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such
person has been imprisoned, when such records or copies thereof have been certified by
the official custodian of such records, may be introduced as such evidence.”
The official records exception to the hearsay rule, embodied in Evidence Code
section 1280, provides: “Evidence of a writing made as a record of an act, condition, or
event is not made inadmissible by the hearsay rule when offered in any civil or criminal
proceeding to prove the act, condition, or event if all of the following applies: [¶] (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. [¶] (c) The
sources of information and method and time of preparation were such as to indicate its
trustworthiness.” (See People v. Martinez (2000) 22 Cal.4th 106, 119-120 (Martinez).)
“A trial court has broad discretion in determining whether a party has established these
foundational requirements. [Citation.]” (Id. at p. 120.) A reviewing court may overturn
the trial court‟s exercise of discretion “„“only upon a clear showing of abuse.”‟
[Citations.]” (Ibid.)
III. Proceedings Below
Angela Hubbard, a paralegal with the district attorney‟s office, testified regarding
five section 969b (969b) packets from the California Department of Corrections (CDC)
produced in the first of defendant‟s hearings on the prior prison term allegations. The
prosecutor introduced each packet as a separate exhibit, labeled Nos. 1 through 5.
Hubbard identified the abstracts of judgment, photographs, and other documents in each
exhibit, which attested to defendant‟s commitments to state prison in Case Nos.
YA071871, TA099214; FWV09420 and F0132350; LA029699, BA144361; BA144361;
and A962646 and A804342. Hubbard also identified a 19-page CLETS rap sheet
5
(People‟s Exh. No. 6) that she had “run” prior to coming to court by entering the CII
number3 into the CLETS system.
Over defense objection, the trial court found that Evidence Code sections 1280
and 15304 were satisfied by the certified copies of the CDC records in the 969b packets.
The court found true the allegations of prior prison term commitments reflected in the
969b packets.
The trial court noted that there were no 969b packets for six of the prior prison
term allegations, and the prosecutor acknowledged she was relying on the CLETS
printout to prove these. Defense counsel questioned the reliability of the printout.
Counsel requested an opportunity to research its validity because she had received no
notice it would be used. The trial court allowed counsel time to prepare an argument on
the issue of whether the CLETS rap sheet was admissible under Evidence Code sections
1280 and 1530.
At the subsequent hearing, counsel argued that the prosecutor‟s repeated requests
to the CDC had produced only the 969b packets the court had reviewed; therefore the
People should not be allowed to fill in the gap with the CLETS printout. The court
reviewed the CLETS printout and found that the prison commitments it had found true
based on the 969b packets were accurately reflected in the CLETS printout. The court
stated, “So it appears to me from looking at the CLETS printout they accurately reflected
every single one of the convictions that we had in the 969b packets, which leads me to
believe that all the entries were in fact correctly entered in the official records as required.
3 A CII number is a California Identification Index number. (Martinez, supra, 22
Cal.4th at p. 121.)
4 Evidence Code section 1530 provides in pertinent part that a “purported copy of a
writing in the custody of a public entity, or of an entry in such a writing, is prima facie
evidence of the existence and content of such writing or entry” if, with respect to writings
kept by entities within the United States, the copy purports to be published by the
authority of the nation or state and the copy is certified as a correct copy by a public
employee having legal custody of the writing.
6
And pursuant to the cases cited in the People‟s motion, I will be receiving People‟s 6 into
evidence.” Defense counsel again protested that the CDC was asked to produce all the
documents for every time defendant was in prison, and some of the commitments in the
CLETS were not in the documents the CDC produced. The trial court replied, “The fact
that . . . the People failed to procure the 969b packets for postconvictions is not enough
for me to doubt the accuracy of the CLETS printout showing those convictions. So I am
finding all those priors to be true. . . .”
IV. CLETS Report Properly Admitted; Evidence Sufficient
As the parties acknowledge, the leading case on the admissibility and use of
CLETS printouts is Martinez, supra, 22 Cal.4th 106. Although defendant frames his
argument as one of sufficiency of the evidence, the gist of his complaint is that the
CLETS report was the sole document used to prove the prior conviction allegations at
issue. He points out that in Martinez the prosecution also presented superior court files, a
prison packet, abstracts of judgment, and testimony from a deputy sheriff to prove the
prior conviction allegations. Defendant appears to argue that the CLETS report lacks
foundation because of the lack of additional evidence. Thus, defendant is essentially
challenging the trustworthiness, or the third prong of the official records exception to the
hearsay rule, and, hence, the report‟s admissibility. As explained infra, we agree with
Martinez that the CLETS report was not lacking in trustworthiness, and we conclude the
evidence in this case was sufficient.
In Martinez, as in the instant case, a paralegal from the district attorney‟s office
testified regarding several documents, including a CLETS printout he had generated on
the day of his testimony. (Martinez, supra, 22 Cal.4th at pp. 112-113, 120.) The
Martinez court summarized the paralegal‟s testimony about the contents of the CLETS
printout, the sources of the information it contained and the fact that personnel authorized
to use CLETS obtain criminal history information by entering into the computer a CII
number, as did paralegal Hubbard in the instant case. (Id. at p. 121.) The Martinez
defendant argued that the trial court erred in admitting the CLETS document under the
official records exception to the hearsay rule (Evid. Code, § 1280) as evidence of prior
7
convictions and prior prison terms. (Martinez, at p. 113.) The Supreme Court stated that
section 969b “„“is permissive and not mandatory”‟” and “„“does not restrict the People
from using other forms of proof . . .” to establish the fact of previous imprisonment.
[Citation.]‟ [Citation.]” (Id. at pp. 116-117.) In sum, no statute required the prosecution
to provide a 969b packet to prove the fact of a prior prison term. (Id. at p. 117.)
Next, the court found that People v. Guerrero (1988) 44 Cal.3d 343, cited by
defendant in the instant case, which limited the scope of proof of prior conviction
allegations to the record of conviction, applied only to the circumstances of the crime and
not to other aspects of the prior conviction such as identity of the defendant or service of
a prior prison term. (Martinez, supra, 22 Cal.4th at pp. 117-118.)
The Martinez court summarized a number of statutes of which the trial court could
have taken judicial notice and that have imposed obligations on California law
enforcement agencies regarding the compilation and reporting of criminal history
information. (Martinez, supra, 22 Cal.4th at pp. 121-125.) These statutory reporting
duties were significant because Evidence Code section 664 sets forth a presumption that
official duty has been regularly performed. (Martinez, at p. 125.) Because of these
statutory duties to carefully report and record criminal history information, CLETS
records came within the Evidence Code section 664 presumption. (Martinez, at pp. 125-
126.) Martinez went on to hold that the CLETS printout satisfied all three requirements
of the official records exception to the hearsay rule, Evidence Code section 1280, in that
the writings were made by and within the scope of duty of a public employee (Martinez,
at pp. 119, 125-126), the writings were made at or near the time of the act or event (id. at
pp. 126-127), and the information was trustworthy (id. at pp. 128-131).
As noted, defendant attempts to distinguish Martinez on the grounds that the
CLETS report in that case was used in addition to other evidence. Martinez clearly
stated, however, that the prosecution was not required to produce 969b packets, which is
where abstracts of judgment and chronological logs are typically found. (Martinez,
supra, 22 Cal.4th at pp. 116-117.) And, although it is true that the Supreme Court
mentioned the deputy sheriff‟s testimony as further evidence that supported the
8
trustworthiness of the CLETS printout, the court by no means indicated that such
testimony was required. The court noted this testimony in a short paragraph at the end of
a lengthy discussion of the reasons the CLETS printout was trustworthy. (Id. at pp. 128-
131.) Moreover, nothing in the official records exception requires foundational
testimony from a custodian or the preparer of the record.
We also note that the official duty presumption merely shifts the burden of proof
to the opposing party, who may rebut the presumption. (Martinez, supra, 22 Cal.4th at p.
125.) Defendant did not contest that he suffered these prison terms and offered no
evidence to the contrary, despite being given extra time to prepare for the second hearing
on the allegations. “„[O]fficial government records clearly describing a prior conviction
presumptively establish that the conviction in fact occurred, assuming those records meet
the threshold requirements of admissibility. (See Evid. Code, § 664 [“It is presumed that
official duty has been regularly performed”].) Some evidence must rebut this
presumption before the authenticity, accuracy, or sufficiency of the prior conviction
records can be called into question.‟ [Citation.] [¶] Thus, if the prosecutor presents, by
such records, prima facie evidence of a prior conviction that satisfies the elements of the
recidivist enhancement at issue, and if there is no contrary evidence, the fact finder,
utilizing the official duty presumption, may determine that a qualifying conviction
occurred. [Citations.]” (People v. Delgado, supra, 43 Cal.4th at p. 1066.) Defendant
made no attempt to rebut the properly admitted evidence in this case.5
We do not agree with defendant‟s argument that the analysis of Assembly Bill No.
1387, which enacted the Criminal Convictions Record Act (CCRA) indicates that CLETS
5 This is not surprising given that when counsel disputed the sufficiency of the
evidence of the prior prison terms shown by the 969b packets, the following exchange
took place:
“THE COURT: Okay. Why are they not sufficient?
“MS. DEETZ [Defense Counsel]: Because they‟re not.
“THE COURT: Is that it?
“MS. DEETZ: Yeah.
“THE COURT: Thank you.”
9
was meant to serve as no more than an aid to acquiring proper records of conviction. As
stated in Martinez with respect to the CCRA, “the Legislature did not question the
accuracy or trustworthiness of existing information sources, such as CLETS.” (Martinez,
supra, 22 Cal.4th at p. 119.) In fact, one legislative analysis explained that “„prosecutors
receive preliminary criminal history information through [the Department‟s] Criminal
Identification and Information System,‟ which „provides timely accurate posting of
criminal history data.‟” (Ibid.) Martinez stated that, by establishing through the CCRA a
simplified process for proving facts regarding a defendant‟s criminal history, the
Legislature did not intend to exclude other methods of proof such as admission of CLETS
records. (Ibid.)
In the instant case, therefore, the trial court did not abuse its discretion in finding
the CLETS report trustworthy, nor did it err in finding the CLETS printout was sufficient
evidence to support true findings on the allegations for which no prison packet had been
produced. The trial court noted that the 969b packets the prosecutor had produced
verified the information in the CLETS printout for the same convictions. Accordingly,
since we conclude that the evidence in the CLETS report was admissible and sufficient to
prove the prior prison term allegations at issue, we reject defendant‟s claim that two more
of his enhancements fail because, had he prevailed, they would fall within the “washout”
period.
Finally, our examination of the CLETS report reveals that the prior prison terms
found by the trial court are all contained in the report, which was certified by Hubbard as
a true and original document received from the CLETS system by the district attorney‟s
office. The trial court did, however, use the prison term from case No. LA029699 twice
in making its list of 10 prior prison terms. 6 This was clearly an inadvertence and thus
constitutes clerical error. “„Generally, a clerical error is one inadvertently made, while a
6 We also observe that defendant challenges the true finding for case No. A985633,
although the trial court did not make a true finding for this allegation and did not include
it in its final list.
10
judicial error is one made advertently in the exercise of judgment or discretion.
[Citations.]‟” (People v. McGee (1991) 232 Cal.App.3d 620, 624.) Courts may correct
clerical errors at any time, including appellate courts that have properly assumed
jurisdiction of a case. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Defendant‟s
sentence must be reduced by one year to correspond with the number of separate prior
prison term allegations found true by the trial court.
DISPOSITION
The judgment is modified to strike one of defendant‟s one-year enhancements
under section 667.5, subdivision (b). In all other respects, the judgment is affirmed. The
superior court is directed to amend the abstract of judgment and forward a corrected copy
to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
FERNS, J.*
_______________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
11