NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A105255

Transcription

1 Filed 4/21/05 P. v. Evans CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. PHILLIP EVANS, Defendant and Appellant. A (Del Norte County Super. Ct. No ) A jury found appellant Phillip Evans guilty of attempted first degree murder (Pen. Code, 1 664/187) with use of a deadly weapon ( 12022, subd. (b)). At a bifurcated court trial, two prior convictions alleged as strikes ( 667, subds. (b)-(i), ) and as serious felonies ( 667, subd. (a)) were found true. Appellant was sentenced to an aggregate term of 36 years to life. On appeal, appellant challenges only the trial court s finding that his 1997 conviction in Kings County of assault by an inmate ( 4501) was a serious felony and strike. Specifically, he contends that the only evidence supporting the trial court s finding was an excerpt from the probation report filed in the Kings County case and that said excerpt was inadmissible hearsay and insufficient to establish the necessary elements of a serious felony or strike. 1 All section references are to the Penal Code unless otherwise indicated. 1

2 DISCUSSION The record reflects that the prosecutor sought to prove appellant s 1997 prior conviction by offering the Department of Corrections section 969b packet as exhibit 23. As relevant here, exhibit 23 contains the 1997 abstract of judgment and the Kings County probation officer s report. The Kings County abstract of judgment establishes that appellant was convicted of a violation of section 4501 Assault on an Inmate and was sentenced to 12 years in state prison (upper term of six years doubled because of prior strike). Section 4501 provides that every person confined in a state prison of this state who commits an assault upon the person of another with a deadly weapon or instrument, or by means of force likely to produce great bodily injury, shall be guilty of a felony To constitute a serious felony for purposes of a five-year enhancement ( 667, subd. (a)) and a strike ( 667, subds. (b)-(i), ), it must be established that the assault was committed with a deadly weapon by an inmate ( , subd. (c)(13)) or that appellant personally inflicted great bodily injury on the victim ( , subd. (c)(8)). Viewing the abstract of judgment under the least adjudicated elements test (People v. Equarte (1986) 42 Cal.3d 456, ), a violation of section 4501 can be committed without the use of a deadly weapon and without actually inflicting or causing great bodily injury (see People v. Rodriguez (1998) 17 Cal.4th 253, 261). Accordingly, the abstract of judgment fails to establish that the offense is a serious felony. (Ibid.) The probation officer s report contains a section entitled Circumstances of the Offense and Arrest. Under this heading, the probation officer reports in some detail that appellant assaulted a fellow inmate at Corcoran State Prison with a razor-blade three quarters of an inch in length and one-half inch in width, attached to a handle 2 A more precise description of the offense than that contained in the abstract would be assault by an inmate rather than on an inmate. 2

3 made of yellow lined paper, wrapped with blue string. The assault took place in the exercise yard and ended only after Correctional Officer Coelho fired two multiple baton rounds with the wooden blocks ricocheting approximately five feet from the defendant and victim.... The victim sustained multiple lacerations that required sutures. The probation officer was obviously not a percipient witness to the assault in state prison. The exact source is not identified. Appellant objected to admission of the probation report excerpt on hearsay grounds, citing People v. Reed (1996) 13 Cal.4th 217, 230. The objection was overruled. In Reed, as here, the prosecution was attempting to prove that a prior assault conviction was a serious felony. As here, a probation report was introduced containing an excerpt that the defendant reportedly struck the victim on the head with a large heavy wooden cane, breaking the cane. (People v. Reed, supra, 13 Cal.4th at p. 221.) In concluding that the excerpt from the probation officer s report was inadmissible hearsay, the court stated: [T]he brief excerpt from a probation officer s report in the prior case was multiple hearsay. Aside from the out-of-court nature of the probation officer s statement itself, the report excerpt includes the officer s assertions that certain events reportedly occurred during the prior assault. Narration of reported events is by definition based on the statements of others. Indeed, unless the probation officer was a percipient witness to the assault, all of the narration contained in the excerpt must have been drawn from other people s previous statements. [ ] The report fragment does not identify the declarant or declarants from whose statements the probation officer drew his factual summary. There is no evidence the excerpt was based on defendant s own admissions to the officer, so as to fall within the hearsay exception for party admissions. [Citations.] Nor does any other exception to the hearsay rule appear applicable. (Id. at p. 230; see also People v. Williams (1990) 222 Cal.App.3d 911, 917.) As in Reed, the probation report fragment concerning the circumstances of the offense does not identify the source of the information. One could speculate that the information comes from an incident report prepared by correctional officers. If the 3

4 record supported such a conclusion, we would agree with the Attorney General that the official records exception to the hearsay rule would be in play. (Evid. Code, 1280; see Gananian v. Zolin (1995) 33 Cal.App.4th 634, ) However, such is not the case. In fact, in affirmatively listing all the Sources of Information relied upon, the probation officer did not list as a source any information provided by the Department of Corrections. In short, the failure to identify the source of the information concerning the assault precludes application of Evidence Code section Under Reed, we conclude that the excerpt from the probation officer s report was inadmissible hearsay. [Citation.] (People v. Reed, supra, 13 Cal.4th at p. 230.) The Attorney General finally argues that there are certain entries in the probation report which are not based upon the hearsay information provided by the correctional officers but upon court records. It is contended that the entries are, therefore, reliable and prove that the offense was a serious felony. We disagree. At best, the entries are ambiguous. In describing the offense charged, the report notes: CT II 4501 PC, Assault W/A Deadly Weapon on a State Prisoner W/Force Likely to Produce Great Bodily Injury.... This same language is repeated in describing the offense of which appellant was convicted. As previously discussed, a violation of section 4501 occurs when a state inmate assaults another with a deadly weapon or by means of force likely to produce great bodily injury. The latter type of assault is not a serious felony. In making the entries in this shorthand fashion, it appears that these two distinct methods of violating section 4501 were merged. In any event, the trial court considered the entire probation report and, in our view, it is reasonably probable that a different finding would have been made if the inadmissible hearsay concerning the circumstances of the assault had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) As the Attorney General correctly observes, the vacating of the finding on the 1997 Kings County prior conviction does not preclude retrial of the serious felony 4

5 and strike allegations concerning this conviction. (Monge v. California (1998) 524 U.S. 721; People v. Scott (2000) 85 Cal.App.4th 905, ) DISPOSITION The finding that the 1997 Kings County conviction of violating section 4501 constituted a serious felony ( 667, subd. (a), ) and a strike ( 667, subds. (b)-(i), ) is reversed and the cause is remanded for a limited retrial on these allegations, if the district attorney elects to retry. In all other respects, the judgment is affirmed. Reardon, J. We concur: Kay, P.J. Sepulveda, J. 5