People v. Woodell

MOSK, J., Concurring and Dissenting.

In determining the truth of a prior conviction allegation involving the character of the defendant’s conduct as well as the nature of his crime, the trier of fact may look to the “record of the conviction,” and only to the “record of the conviction.” So did we hold in People v. Guerrero (1988) 44 Cal.3d 343, 355 [243 Cal.Rptr. 688, 748 P.2d 1150] (hereafter sometimes Guerrero). That is the rule for all prior convictions, whether suffered outside California or within. (People v. Myers (1993) 5 Cal.4th 1193, 1195 [22 Cal.Rptr.2d 911, 858 P.2d 301].)

Although the majority rightly conclude that the “record of the conviction” includes an opinion by a reviewing court disposing of an appeal from a judgment of conviction, they wrongly apply it to the facts of this case.

I

By information, the People charged defendant in the superior court with the serious felony of residential burglary. To bring the cause within the *462so-called “Three Strikes” law, they alleged, in substance, that he had previously been convicted of two serious felonies in North Carolina, that is, breaking or entering and assault with a deadly weapon with intent to kill inflicting serious injury. They also alleged that, prior to the present serious felony, he had previously been convicted of the same two serious felonies on charges brought and tried separately. They further alleged that he had served a prior prison term for each. He pleaded not guilty to the charge and denied the allegations.

Trial was by jury. The allegation that defendant had previously been convicted in North Carolina of assault with a deadly weapon as a serious felony under the Three Strikes law involved the character of his conduct— specifically, whether he personally used such a weapon, viz., a scissor blade. On this point, the People offered, and the superior court received, three items of evidence that allowed, but did not compel, an inference of personal use: an indictment, a printed form recording a plea of guilty, and a judgment of conviction, all filed in the North Carolina Superior Court. Over defendant’s objection that it constituted and/or contained inadmissible hearsay, the People offered,1 and the superior court received, a single item of evidence that practically compelled a finding of personal use: an opinion of the North Carolina Court of Appeals that affirmed the judgment of conviction. In pertinent part, that opinion states: “Defendant . . . contends that the court erred by failing to find as a statutory mitigating factor that defendant acted under strong provocation. He testified [at a sentencing hearing] that over a two-month period the victim had been threatening to sexually assault him if he did not repay an alleged debt and that on the morning of the assault, the victim told him that ‘if I didn’t come to school in the afternoon don’t come.’ Defendant stated he interpreted this statement as a threat to sexually assault him. [f] A court is compelled to find a mitigating factor only if the evidence offered at the sentencing hearing ‘ “so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn. . . .” ’ [Citation.] We do not believe the evidence compels a finding that he acted under adequate provocation. The evidence”—which apparently consisted of an “unsworn statement of a deputy sheriff’—“shows that at approximately 8:45 a.m. on the morning of the assault, defendant told another inmate that he was going to ‘kill somebody.’ This inmate also indicated that he saw defendant sharpening a scissor blade at 1:00 p.m. and that defendant was still sharpening the blade at 1:35 p.m. Approximately five minutes later, he saw defendant stab the victim from behind with the scissor blade. Under these *463circumstances, we hold the court did not err by failing to find the mitigating factor.”

The jury returned a verdict finding defendant guilty of residential burglary, fixing the degree at the first, and made findings that all the allegations were true, including that he had previously been convicted in North Carolina of assault with a deadly weapon as a serious felony under the Three Strikes law. The superior court rendered judgment accordingly, imposing a sentence including a term of thirty-five years to life in prison: an indeterminate term of twenty-five years to life for first degree residential burglary because there was more than one finding of a prior serious felony conviction under the Three Strikes law; a term of five years additional and consecutive for each of the two findings of a prior serious felony conviction on charges brought and tried separately; and a stayed term of one year additional and consecutive for each of the two prior-prison-term findings. It expressed the view that it did not have authority to vacate a finding of a prior serious felony conviction under the Three Strikes law, on its own motion, in furtherance of justice.

In all respects save one, the Court of Appeal affirmed. Among other things, it concluded that the superior court did not err by receiving in evidence the North Carolina appellate opinion: The opinion was not admissible as part of the “record of the conviction”; but it was admissible to explain the indictment, the guilty plea form, and the judgment, which were parts thereof. In this respect only did it not affirm: it set aside the sentence under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628], in which we held that a trial court does indeed have authority to vacate a finding of a prior serious felony conviction under the Three Strikes law, and then remanded the cause for resentencing.

The majority now affirm the judgment of the Court of Appeal. They conclude that the North Carolina appellate opinion was part of the “record of the conviction,” and was admissible as such over defendant’s hearsay objection.

II

In Guerrero, we held that, in determining the truth of a prior conviction allegation involving the character of the defendant’s conduct as well as the nature of his crime, the trier of fact may look to the “record of the conviction,” and only to the “record of the conviction.” (People v. Guerrero, supra, 44 Cal.3d at p. 355.)

We based our holding on considerations of fairness and reasonableness. “To allow the trier of fact to look to the . . . record of the conviction”— *464indeed, to the “entire record of the conviction”—“is certainly reasonable: it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people [or the Legislature] in establishing [certain prior conviction allegations] . . . that refer[] to conduct, not a specific crime. To allow the trier to look to the record of the conviction—but no further—is also fair: it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.” (People v. Guerrero, supra, 44 Cal.3d at p. 355, first italics added, other italics in original.)

The same considerations of fairness and reasonableness support the conclusion that the “record of the conviction” includes an opinion by a reviewing court disposing of an appeal from a judgment of conviction. By its very nature, such an opinion reflects, or at least should reflect, the record properly so called. Another consideration of fairness and reasonableness virtually demands the result, namely, the possibility that the court has reversed the judgment and set aside the conviction.

That the “record of the conviction” includes an appellate opinion, however, does not mean that, in any given case, such an opinion is, in fact, admissible evidence for any purpose. (See People v. Guerrero, supra, 44 Cal.3d at p. 356, fn. 1.) Rather, its admissibility vel non depends on the “rules of evidence [and] other statutory limitation.” (People v. Myers, supra, 5 Cal.4th at p. 1201; accord, People v. Reed (1996) 13 Cal.4th 217, 223, fn. 2 [52 Cal.Rptr.2d 106, 914 P.2d 184].)

Usually implicated for an appellate opinion is the hearsay rule, which declares that evidence of a statement made other than by a witness while testifying is generally inadmissible to prove the truth of the matter stated (Evid. Code, § 1200). Such an opinion is manifestly not a statement by a witness. Exceptions are available {id., §§ 1220-1370), notably for admissions {id., § 1220) and former testimony (id., §§ 1290-1294). It is the proponent who bears the burden of showing the applicability of at least one. (E.g., People v. Livaditis (1992) 2 Cal.4th 759, 778 [9 Cal.Rptr.2d 72, 831 P.2d 297].) The basic statement that the appellate opinion necessarily constitutes viz., the judgment of conviction is affirmed, modified, reversed, etc.— apparently comes within the official record exception (Evid. Code, § 1280). Any other statement that it may happen to contain must be shown to come within its own exception in order to avoid inadmissibility.

Always implicated for an appellate opinion, if somewhat less obviously and less strictly, is the best evidence rule, which declares that evidence other *465than the original of a writing, i.e., secondary evidence, is generally inadmissible to prove the writing’s content (Evid. Code, § 1500). Such an opinion is, as it were, “secondary evidence” of the content of a “writing” whose “original” is the record properly so called. That is because an appeal is generally confined thereto. (E.g., 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 328, p. 369.) Exceptions are available (Evid. Code, §§ 1501-1510), notably for writings that have been lost or destroyed without fraudulent intent (id., § 1501) or that are not reasonably procurable (id., § 1502). It is the proponent who bears the burden of showing the applicability of at least one. (See Osswald v. Anderson (1996) 49 Cal.App.4th 812, 819 [57 Cal.Rptr.2d 23].) Of course, an appellate opinion may be deemed “secondary evidence” of the record properly so called only if, and to the extent that, it is an accurate reflection thereof.

Ill

I now turn to the case at bar, and specifically to the finding that defendant had previously been convicted in North Carolina of assault with a deadly weapon as a serious felony under the Three Strikes law.

In the superior court below, defendant did not object to the admission of the North Carolina appellate opinion on best evidence grounds. Because he did not, he has not preserved for review a claim based thereon. (E.g., People v. Alvarez (1996) 14 Cal.4th 155, 186 [58 Cal.Rptr.2d 385, 926 P.2d 365].)

Defendant, however, did indeed object to the admission of the North Carolina appellate opinion on hearsay grounds. The superior court impliedly overruled his objection, and received the opinion in evidence.

This was error. The North Carolina appellate opinion was plainly hearsay, inasmuch as it constituted and contained statements made other than by a witness offered for their truth—that defendant personally used a deadly weapon. The People did not even attempt to carry their burden of showing that the opinion itself or any of its parts came within any exception. They claimed to discern a “finding” by the North Carolina appellate court “that the defendant personally used the scissors . . . ,”2 None is evident. That is unsurprising. Like their California counterparts (see, e.g., 9 Witkin, Cal. Procedure, supra, Appeal, § 316, p. 354), North Carolina appellate courts generally do not make findings (see, e.g., Matter of Montgomery (1984) 311 N.C. 101, 111 [316 S.E.2d 246, 253]). Furthermore, to judge from the opinion, there was no finding, express or implied, by the North Carolina Superior Court to similar effect. There was merely the absence of a finding *466that “defendant acted under strong provocation.” To be sure, the opinion contains the statement by the unidentified inmate on defendant’s personal use of a deadly weapon. But if that statement had itself been offered for its truth, it would have been inadmissible hearsay within inadmissible hearsay within inadmissible hearsay. The unidentified inmate evidently made the statement outside of court to a deputy sheriff, without subjecting himself to cross-examination and without providing indicia of reliability. In what was apparently an “unsworn statement” of his own,3 the deputy sheriff, in turn, “summariz[ed]” the statement at the sentencing hearing, at which “[fjormal rules of evidence [did] not apply” (N.C. Gen. Stat. § 15A-1334(b) (1997)), and at which defendant bore the burden of proof as to mitigation under a standard approaching that of beyond a reasonable doubt (State v. Taylor (1983) 309 N.C. 570, 576-577 [308 S.Ed.2d 302, 306-308]). The appellate court then simply paraphrased the statement in its opinion, supplying nothing that was lacking therein. If a probation officer had done the same in a report, the statement would unquestionably be held to be inadmissible hearsay. (See People v. Reed, supra, 13 Cal.4th at pp. 230-231.) Such must be the result here.

The majority resist this conclusion. Unsuccessfully.

At the outset, the majority assert that the issue that is material in cases of this sort is not the defendant’s conduct, but rather the crime of which he was convicted, or perhaps better, the basis of his liability. Not so. It is indeed the defendant’s conduct—here, whether or not defendant personally used a deadly weapon—that is of consequence. That is why his subsequent admission of what he did or did not do is sufficient in and of itself. (See People v. Jackson (1985) 37 Cal.3d 826, 833-837 [210 Cal.Rptr. 623, 694 P.2d 736].) In most instances, the crime of which the defendant was convicted can readily be established. So it is here—assault with a deadly weapon under North Carolina law. That is often not enough. As it is not enough here. A crime generally allows conviction on the basis of direct or vicarious liability. Again, so it is here. (State v. Barnes (1997) 345 N.C. 184, 230-233 [481 S.E.2d 44, 69-71.) At trial, the basis of liability usually need not be found by the trier of fact if liability itself is found. (See People v. Santamaria (1994) 8 Cal.4th 903, 922-923, fn. 10 [35 Cal.Rptr.2d 624, 884 P.2d 81] [applying California law, but speaking generally].) Similarly, on a plea of guilty, the basis of liability need not be admitted by the defendant—as apparently it was not admitted by defendant here.

The majority then assert that the North Carolina appellate opinion was not hearsay. But the opinion did, in fact, constitute and contain statements made *467other than by a witness offered for their truth—that defendant personally used a deadly weapon. The result would be no different if the opinion could be deemed to have been offered to prove the crime of which he was convicted or the basis of his liability. For it proves his crime and the basis of his liability only by proving his conduct. I recognize that an appellate . opinion may be termed a “judicial statement.” (Maj. opn., ante, at p. 459.) But a “judicial statement” is not admissible per se—and certainly not the opinion here, which largely recites inadmissible hearsay within inadmissible hearsay within inadmissible hearsay. Furthermore, the only “judicial statement” that comes within an exception as such, although only under certain limited circumstances, is a judgment (see Evid. Code, §§ 1300-1302) —which does not embrace the opinion here.

By erroneously receiving the North Carolina appellate opinion in evidence, the superior court subjected defendant to prejudice. Although the indictment, the guilty plea form, and the judgment allowed an inference that he personally used a deadly weapon, the opinion—and the opinion alone— practically compelled a finding to that effect. There is, accordingly, at least a reasonable probability that it affected the outcome to his detriment. (People v. Watson (1956) 46 Cal.2d 818, 836-837 [299 P.2d 243].)

IV

For the reasons stated above, I would reverse the judgment of the Court of Appeal to the extent that it sustains the finding that defendant had previously been convicted in North Carolina of assault with a deadly weapon as a serious felony under the Three Strikes law, and would remand the cause to that court with directions to remand it to the superior court for proceedings not inconsistent with the views that I have expressed herein.

Kennard, J., concurred.

Appellant’s petition for a rehearing was denied April 1, 1998, and the opinion was modified to read as printed above. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.

Albeit reluctantly, preferring instead that the superior court “mak[e] a finding of judicial notice that,” in a declaration that he had submitted to it previously, defendant “acknowledged that he personally used the scissors . . . [o]r, in the alternative, that the [North Carolina] Court of Appeal \sic\ made a finding that [he] personally used the scissors . . . .”

See footnote 1, ante.

Which, as such, is outside the former testimony exception. (Evid. Code, § 1290.)