Brief Bank # B-876 (Re: F 17.25 n5 [Prior Conviction: Proof Must Be Limited To Court Documents; Live Testimony Improper].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT – DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal
Plaintiff and Respondent, No. G000000
v. (Orange County
Superior Court
JOHN DOE, No. 98NF0000)
Defendant and Appellant
_____________________________________/
APPELLANT’S OPENING BRIEF
Appeal From Final Judgment Of Conviction
Superior Court, County of Orange
The Honorable Richard F. Toohey
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
IV. AS A MATTER OF LAW, THE EVIDENCE WAS INSUFFICIENT TO PROVE THE “STRIKE” ALLEGATION WHICH THE TRIAL COURT FOUND TRUE
A. Overview
The trial court’s true finding on one “strike” allegation was expressly based on live testimony from the guilt phase of the current trial. (CT 141.)
That was patently contrary to numerous Supreme Court opinions. One of the most recent–decided three months before the priors trial in this case–is People v. Kelii (1999) 21 Cal.4th 452. Kelii clearly held that in adjudicating “whether a prior conviction is [a] serious [felony],” “no witnesses testify about the facts of the prior crimes [and t]he trier of fact considers only court documents.” (Id. at pp. 456-457.)
Still, this holding in Kelii was hardly a new development. Live testimony has long been prohibited as a means of proving whether a prior conviction is a serious felony. [Footnote 1] (See, e.g., People v. Bartow (1996) 46 Cal.App.4th 1573, 1582 [under the seminal Supreme Court case on the issue {People v. Guerrero (1988) 44 Cal.3d 343}, “neither the prosecution nor the defense may call live witnesses”]; People v. Reed (1996) 13 Cal.4th 217, 226 [“[I]n . . . Guerrero . . . we precluded the prosecution from calling live witnesses to the criminal acts in the prior case . . . . Under Guerrero, the prosecution [is] absolutely barred from presenting such evidence.”]; People v. Best (1997) 56 Cal.App.4th 41, 45 [same].)
In any event, Kelii–like any other Supreme Court opinion–must be applied to this case. (E.g., Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978 [judicial decisions apply retroactively]; see also Harper v. Virginia Dep’t of Taxation (1993) 509 U.S. 86, 97 [court has no constitutional authority to disregard current law or to permit similarly situated litigants to be treated differently].)
In light of Kelii, and at least five other Supreme Court cases before it–including Guerrero and Reed cited above–the evidence is insufficient to support the “strike” finding. Under state law and the Fourteenth Amendment, the “strike” finding must be reversed. (People v. Johnson, supra, 26 Cal.3d at pp. 576-579; Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 523.)
B. Procedural Background
Appellant takes the evidence in a light most favorable to the People, as he would for any insufficiency argument. (People v. Johnson, supra, 26 Cal.3d at p. 576; Jackson v. Virginia, supra, 443 U.S. at p. 319.)
The information in the current case alleged as “strikes” that appellant suffered serious felony convictions in each of two 1982 Illinois cases, No. 82-10270, and No. 82-10271. (CT 18-19.) The current information alleged that prior case 82-10270 involved a lewd act with a 13-year-old boy, and prior case 82-10271 involved a lewd act with a 10-year-old boy. (CT 18-19.)
The existence of a prior felony conviction in No. 82-10270 is not at issue. The properly admitted evidence showed appellant had a felony conviction in that case (as well as in 82-10271, in which the trial court found the “strike” allegation not true). Appellant’s point is that there was insufficient evidence to prove the prior conviction in 82-10270 was a serious felony; and thus, that there was insufficient evidence to prove the prior conviction was a “strike.” (See Pen. Code, § 667, subd. (d)(2); People v. Woodell (1998) 17 Cal.4th 448, 453.)
After a bifurcated bench trial on the “strike” allegations (CT 112-113; RT 290-294), there was posttrial briefing. (See CT 113, 129, RT 292-294, 296-298 [briefing orders]; CT 119-127, 134-140 [defense briefing]; CT 130-133 [prosecution briefing].) The defense objected to documents written after sentencing by the prosecutor in 82-10270 and 82-10271 with a caption of “Official Statement of Facts” (CT 202-203, 218-219 [82-10720], 212-213, 223-224 [82-10271]), on the grounds that they were (i) hearsay, and (ii) postjudgment documents which were not part of the “record of [the prior] conviction” as defined in cases beginning with People v. Guerrero, supra, 44 Cal.3d 343 [cited by the defense at CT 121, 124, 138] and also including People v. Woodell, supra, 17 Cal.4th at pp. 452-454 [cited at CT 120-121, 138] and People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [cited at CT 121]. (RT 291:3-4; CT 119-125, 134-138; see discussion post, pp. -.) The trial court sustained the hearsay objection, and did not consider the prosecutorial postjudgment “Official Statements of Facts.” (CT 141.)
The trial court found the “strike” allegation as to No. 82-10271 not true, but found the “strike” allegation as to No. 82-10270 true. (CT 141.) A minute order stated that the trial court considered evidence which had been presented at the current jury trial (the earlier guilt phase). (CT 141.)
The relevant allegation in the current information was:
In Case Number 8210270 and/or 82C0270, defendant was convicted of a violation of Chapter 38, Section 11-4(a-3), of Illinois Revised Statutes 1981, as amended because he did touch a thirteen year old boy in a lewd manner with the intent to arouse and satisfy his sexual desires. (CT 19.)
The relevant Illinois statute was presented to the trial court (RT 293:18-20), and is in this record. It stated:
11-4 Indecent liberties with a child
§ 11-4. Indecent liberties with a child. (a) Any person of the age of 17 years and upwards commits indecent liberties with a child when he or she performs or submits to any of the following acts with a child under the age of 16:
(1) Any act of sexual intercourse; or
(2) Any act of deviate sexual conduct [defined in Ill. Rev. Stat. § 11-2 as either oral or anal sex]; or
(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both. (CT 55 [underscoring added].)
This Illinois statute encompasses some conduct which would not be a serious felony in California: A lewd act with a person of ages 14 or 15 would violate the above Illinois statute, but would not be a serious felony in California. To be a serious felony in California, a lewd act must either be with a child of under age 14, or done by force or fear. (See Pen. Code, § 1192.7, subds. (c)(3)-(c)(6).)
To qualify as a strike, a conviction in another jurisdiction must include all of the elements of a California serious felony under section 1192.7(c). (Pen. Code § 667, subd. (d)(2); People v. Garcia (1999) 21 Cal.4th 1, 4, fn. 4; People v. Avery (2000) 83 Cal.App.4th 997, 1000; People v. Leng (1999) 71 Cal.App.4th 1, 10.)
In its seminal Guerrero opinion, the Supreme Court held that when the trier of fact has only a prior guilty plea, and no other evidence of the specific act underlying the prior conviction, the evidence establishes only the least offense punishable under the foreign law (the “least adjudicated elements” of the foreign offense). (People v. Guerrero, supra, 44 Cal.3d at pp. 354-355.) “[W]hen the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law.” (People v. Rodriguez, supra, 17 Cal.4th at p. 262 [quoting People v. Guerrero, supra, 44 Cal.3d at p. 355].) This is well settled. (Accord, e.g., People v. Jones (1999) 75 Cal.App.4th 616, 633-634; People v. Cortez (1999) 73 Cal.App.4th 276, 280-284; People v. Encinas (1998) 62 Cal.App.4th 489, 491-492; People v. Howard (1996) 47 Cal.App.4th 1526, 1532; see also People v. Cruz (1996) 13 Cal.4th 764, 771.)
Thus, if the evidence was limited to (i) the existence of the prior conviction and (ii) the Illinois statute above under which that conviction was entered, then the evidence established only the least offense punishable under that Illinois statute. There would be no evidence that the prior conviction was a serious felony, and the “strike” finding would have to be reversed. (People v. Rodriguez, supra, 17 Cal.4th at pp. 261-262; People v. Jones, supra, 75 Cal.App.4th at p. 633; People v. Cortez, supra, 73 Cal.App.4th at pp. 283-284; People v. Encinas, supra, 62 Cal.App.4th at p. 492.)
C. In A Priors Trial, A Trial Court Cannot Consider Testimony In The Current Case; The Trial Court Plainly Erred In Doing So Here
1. Our Supreme Court Has Repeatedly Held That Testimony From A Current Trial Cannot Be Considered In A Trial Of Priors, Including In Its Kelii Opinion Three Months Before The Priors Trial Here
The trial court said it considered “evidence presented during the [current] jury trial” in making its true finding on the prior conviction allegations. (CT 141.) Presumably, the court was referring to Mr. E’s testimony in the current jury trial (i.e., the guilt phase) that when he was 13, appellant moved his hand on Mr. E’s penis and touched his genitals. (RT 165-167.) That is the only reference to the current jury trial which would make sense, in light of the fact that the court found the 82-10270 “strike” allegation true, but the 82-10271 “strike” allegation not true. (A lewd act committed with a child of 13 would be a serious felony, and thus a “strike.” (Pen. Code, § 1192.7, subd. (c)(6).) Thus, appellant assumes here, solely for this argument, that Mr. E’s jury testimony was the “evidence presented during the jury trial” which the trial court said it considered.
The trial court plainly erred in considering Mr. E’s testimony from the jury trial. It was not properly before the trier of fact in the priors trial, on the issue of whether the prior conviction was a serious felony. The defense so argued below, in specifically addressing Mr. E’s testimony. (CT 137-138 [quoting People v. Woodell, supra, 17 Cal.4th at p. 452 and citing People v. Guerrero, supra, 44 Cal.3d 343].) The defense was correct.
In determining whether a conviction is a prior serious felony under California law, “the trier of fact may look to the entire record of conviction ‘but no further.’ [Citation to Guerrero].” (People v. Reed, supra, 13 Cal.4th at p. 226 [italics in original].) “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. Woodell, supra, 17 Cal.4th at p. 453 [quoting People v. Guerrero, supra, 44 Cal.3d at p. 355] [italics in original].) The “entire record of conviction,” the limit of what a trial court may consider on whether a prior conviction is a serious felony [“no further“], includes only “record documents reliably reflecting the facts of the offense for which the defendant was convicted.” (People v. Reed, supra, 13 Cal.4th at p. 223; People v. Houck (1998) 66 Cal.App.4th 350, 355-357.)
As a result–and importantly here–live testimony in the current case is not part of the “entire record of conviction” that a trial court may consider in a priors trial, on the issue of whether the prior conviction is a serious felony. That has been clear for over a decade, since the Supreme Court’s opinion in People v. Guerrero, supra, quoted above.
If the 1988 Guerrero opinion hadn’t made that clear enough, the Supreme Court made it even clearer five years later: The trier of fact may consider only “evidence found within the entire record of the foreign conviction” to determine whether the prior conviction is a serious felony. (People v. Myers (1993) 5 Cal.4th 1193, 1201 [quoted in People v. Woodell, supra, 17 Cal.4th at p. 453] [emphasis added].) The phrase quoted above, “Found within the entire record of the foreign conviction,” means what it says: The only evidence which may be considered at a priors trial, on whether the prior conviction is a serious felony, is evidence that was actually “within the record” of the foreign (prior) conviction. A trier of fact’s consideration may extend to that evidence which was in the prior record, “but no further.” (People v. Guerrero, supra, 44 Cal.3d at p. 355; People v. Kelii, supra, 21 Cal.4th at p. 456; People v. Woodell, supra, 17 Cal.4th at p. 453; People v. Myers, supra, 5 Cal.4th at p. 1200 [italics in original].)
And if that weren’t clear enough, the Supreme Court said it even more explicitly three years after Myers:
By holding in Guerrero that the trier of fact may look to the entire record of conviction “but no further” [citation to Guerrero], we precluded the prosecution from calling live witnesses to the criminal acts in the prior case. The People “may not relitigate the facts behind the record.” [Citation.] As one Court of Appeal summarized the rule, “the prosecution is not permitted to relitigate the circumstances of a past offense by introducing evidence outside the record.” [Citation.] Live testimony . . . would have been evidence outside the record, used to relitigate the circumstances of the prior offense. Under Guerrero, the prosecution was absolutely barred from presenting such evidence.
(People v. Reed, supra, 13 Cal.4th at p. 226 [underscoring added; italics in original].)
Obviously, live testimony in the current case cannot have been in the record of the prior conviction. (Accord Reed, supra, 13 Cal.4th at p. 226.) Thus in a priors trial, since the trier of fact cannot go beyond the record of a prior conviction in determining whether the prior conviction was a serious felony, it cannot consider testimony from the guilt phase of the current case on that issue. That is what our Supreme Court has repeatedly held in the Guerrero/Myers/Reed/Woodell/Rodriguez line of cases, as discussed above.
And if that weren’t clear enough, our Supreme Court recently said it again in Kelii, with even more specificity: “In determining whether a prior conviction is serious . . . no witnesses testify about the facts of the prior crimes. The trier of fact considers only court documents.” (People v. Kelii, supra, 21 Cal.4th at pp. 456-457.)
The Supreme Court couldn’t have been clearer: On whether a prior conviction was a serious felony (i.e., the conviction’s facts and circumstances), live testimony in the current case cannot be considered. Period.
True, in adjudicating that issue, the trier of fact in a priors trial may have to draw inferences “from transcripts of testimony or other parts of the prior conviction record.” (People v. Kelii, supra, 21 Cal.4th at p. 457 [emphasis added].) But that is still limited to the prior conviction record–documents from the record of the prior conviction, not current testimony.
And if that somehow weren’t clear enough, the Supreme Court said it yet again in Kelii: “But the factual inquiry [is] limited to court documents . . . .” (Id. [emphasis added].)
The trial court plainly erred in considering Mr. E’s testimony from the current jury trial on the issue of whether the prior conviction was a serious felony. Appellant assigns the admission of that evidence as separate error post, Part VI. Here, he establishes the error as part of his showing that there was insufficient evidence which was actually before the trial court–under the law established by our Supreme Court–to support the true finding.
2. The Trial Court’s Erroneous Justification For Considering Current Testimony, Based On A 1990 Court Of Appeal Opinion, Was Plainly Erroneous And Involved A Misreading Of The 1990 Opinion, In Light Of Established Supreme Court Law
The prosecution asked the trial court to consider Mr. E’s jury trial testimony anyway, in a discussion that mostly relied on People v. Elmore (1990) 225 Cal.App.3d 953, and didn’t discuss any of the Supreme Court opinions discussed in the previous section. (CT 131-132.) As discussed above, the defense objected and correctly relied on two of the key cases in the area, People v. Guerrero, supra, 44 Cal.3d 343 and People v. Woodell, supra, 17 Cal.4th 448. (See ante, p. .) The trial court sided with the prosecution, and cited the prosecution’s Elmore case as support for using Mr. E’s guilt phase (jury trial) testimony in the bench priors trial. (CT 141.)
As is clear from a Supreme Court holding earlier this year, Elmore was correct. However, the trial court and the prosecution were not.
Moreover, neither the trial court nor the prosecution cited a single (post-Guerrero) published opinion which relied on current trial testimony to prove whether a prior conviction was a serious felony, or held that to be permissible. There is a good reason: No such published opinions exist. The conclusion of the trial court and the prosecution were completely unsupported by any relevant legal authority.
If the trial court and prosecution had been correct, then Justice Reardon’s unanimous 1990 opinion for the Court of Appeal in People v. Elmore, supra, would have “overruled” the Supreme Court’s 1988 Guerrero opinion. Guerrero was very clear in establishing what subsequent Supreme Court cases such as Myers, Reed, Rodriguez, Woodell, and most recently Kelii reiterated: A trial court cannot consider testimony from the current case as evidence of whether a prior conviction was a serious felony, because testimony from the current case isn’t evidence from “within the entire record of the foreign conviction.” (Guerrero, 44 Cal.3d at p. 355; Reed, supra, 13 Cal.4 that p. 226; see ante, p. .) Elmore could hardly prevail over such a solid wall of Supreme Court authority. Nor did it try.
The issue in Guerrero was whether the trier in a priors trial could consider the accusatory pleadings in the prior cases, as evidence that the defendant’s prior burglary convictions were serious felonies because the burglaries underlying those convictions were residential. (Id., 44 Cal.3d at pp. 345-346.) Guerrero held it could. In so doing, Guerrero formulated the rule on which appellant relies, which has been reiterated by our Supreme Court on so many occasions since:
[I]n determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of conviction. . . . To allow the trier to look to the record of the [prior] conviction–but no further–[is] 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.
(Guerrero, 44 Cal.3d at p. 355 [italics in original].)
This passage from Guerrero has been quoted in numerous Supreme Court cases since then. These cases–as appellant discussed ante, pp. —have held that Guerrero meant what it said: A trier of prior conviction allegations cannot consider anything from outside of the record of the prior conviction–including testimony from the current case–to determine whether a prior conviction is a serious felony. (People v. Myers, supra, 5 Cal.4th at pp. 1200-1201; People v. Reed, supra, 13 Cal.4th at p. 226; People v. Woodell, supra, 17 Cal.4th at pp. 452-453; People v. Rodriguez, supra, 17 Cal.4th at p. 462; People v. Kelii, supra, 21 Cal.4th at pp. 456-457; People v. Martinez (2000) 22 Cal.4th 106, 115; see also People v. Monge (1997) 16 Cal.4th 826, 838-839 [priors trial “is not like ‘the trial on guilt [citation],’ because the prosecution may only present evidence from the record of the prior conviction”] [italics in original]; People v. Johnson (1992) 3 Cal.4th 1183, 1242 [both cases citing People v. Guerrero, supra, 44 Cal.3d at 355].) To put it most directly: On that issue, “no witnesses testify about the facts of the prior crimes. The trier of fact considers only court documents.” (Kelii, supra, 21 Cal.4th at pp. 456-457 [underscoring added].)
Obviously, if the Court of Appeal in Elmore tried to do something as radical as “overruling Guerrero“–without so much as mentioning Guerrero or any other Supreme Court case on the issue!–then Guerrero would have to prevail. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) And if there was a conflict between Elmore and the post-Guerrero Supreme Court cases such as Myers, Reed, Rodriguez, Woodell and Kelii, the Supreme Court cases would again have to prevail. (Auto Equity, supra.)
It would have been extremely surprising–and rather lawless–if the Court of Appeal in Elmore had published an opinion in which it purported to overrule a major Supreme Court opinion from two years earlier, without discussing or even mentioning that major Supreme Court opinion or any other. Certainly, this Court would have to presume the Elmore Court didn’t do anything so patently contrary to law. (See also Evid. Code, § 664 [public officials presumed to do their duty]; Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914 [court is presumed to have followed properly established law, absent contrary evidence].) The trial court’s ruling here, by contrast, required the Elmore Court to have done exactly what it couldn’t do. That alone should indicate the trial court here got it wrong.
As it turns out, our Supreme Court recently made clear that Elmore was correctly decided. It just doesn’t stand for what the prosecution claimed and the trial court accepted.
In Elmore, the issue was not the same as the issue in the case at bar. The issue in the case at bar is whether the trier in a prior serious felony conviction trial can consider a victim’s testimony from the current jury trial, as evidence of whether the defendant’s prior conviction was a serious felony. By contrast in Elmore, the issue was whether the trier in a prior prison term trial could consider a defendant’s testimony from the current jury trial, as evidence of whether the defendant suffered separate prison terms for his prior convictions within the meaning of section 667.5(b).
Those are two very different issues. The law governing appellant’s case has long been clear, as discussed above: A trier of fact in a priors trial cannot consider a victim’s testimony from the current trial–or anything else which was not in the record of the prior conviction–as evidence of whether a prior conviction was a serious felony. (People v. Kelii, supra, 21 Cal.4th at pp. 456-457; People v. Martinez, supra, 22 Cal.4th at p. 117; People v. Woodell, supra, 17 Cal.4th at pp. 454, 457; People v. Reed, supra, 13 Cal.4th at pp. 220, 222, 226, 228; People v. Myers, supra, 5 Cal.4th at pp. 1195, 1200-1202; People v. Guerrero, supra, 44 Cal.4th at pp. 345, 355.) However, that doesn’t answer the Elmore question of what a trier of fact in a priors trial can consider on other issues, such as whether the defendant served separate prison terms for separate convictions. Elmore held that on such an issue–something other than whether a prior conviction was a serious felony–the trial court could consider the defendant’s own testimony in the current trial. (Id., 225 Cal.App.3d at p. 957.)
We now know that Elmore was correctly decided. In People v. Martinez (2000) 22 Cal.4th 106, the issue was whether the defendant served prison terms for certain prior convictions, an issue similar to that in Elmore. To prove the defendant was the same person as the one who served the prison terms described in a section 969b packet, the prosecution offered live testimony and a CLETS printout.
The Supreme Court granted review in Martinez to resolve a conflict among Court of Appeal opinions on an issue of what was admissible in priors trials to prove issues other than the issue now before this Court, whether a prior conviction is a serious felony. (See Martinez, 22 Cal.4th at pp. 111-112, 113.) One appellate opinion, which the Supreme Court ultimately rejected in Martinez, had held that a CLETS printout was inadmissible to prove the existence of a prior robbery conviction, relying on the Supreme Court’s seminal opinion on priors trials in People v. Guerrero, supra. (See Martinez, supra, 22 Cal.4th at pp. 113-114, 116-118 [discussing and rejecting People v. Matthews (1991) 229 Cal.App.3d 930].)
A later appellate opinion, which the Supreme Court ultimately accepted in Martinez, held that while Guerrero limited the evidence that may be considered on whether a prior conviction was a serious felony, the limitation of Guerrero did not apply to other issues which might arise in priors trials, such as whether a defendant served a prior prison term as defined in section 667.5(b). (Martinez, supra, 22 Cal.4th at pp. 114-118 [discussing and accepting People v. Dunlap (1993) 18 Cal.App.4th 1468].) Martinez noted that Guerrero never considered the latter issue, and opinions are not authority for propositions not considered. (Martinez, 22 Cal.4th at p. 118.)
Martinez held: “[E]vidence other than the record of conviction and certified prison records under section 969b . . . is admissible to establish matters other than the nature and circumstances of the conduct underlying a prior conviction.” (Martinez, 22 Cal.4th at p. 116].) The opinion that Martinez ratified, People v. Dunlap, supra, also stated the proposition:
We see a substantial distinction between cases such as Guerrero . . . where the question is the substance of the prior conviction (i.e., the nature of the conduct giving rise to it), and cases such as Matthews and this one in which the question is the fact of the prior conviction or the additional fact that the defendant served a prison term within the meaning of section 667.5. As the Supreme Court pointed out in Guerrero, going beyond the record of conviction to prove its substance “threaten[s] the defendant with harm akin to double jeopardy and denial of speedy trial.” (People v. Guerrero, supra, 44 Cal.3d at p. 355.) But no such danger is present when evidence other than court or prison records are used only to establish the fact of conviction and/or service of a prison term.
In our view, nothing in Guerrero . . . or logically supports the statement of the Matthews court that the fact of a prior conviction can be proved only by the record of conviction or certified prison records. Provided that other types of evidence (e.g., other official records) satisfy applicable rules for admissibility, they may be relied on to establish a prior conviction. [Citation.]
(People v. Dunlap, supra, 18 Cal.App.4th at p. 1476 [italics in original].)
Which brings us back to Elmore, because that is exactly what Elmore held. Elmore, like Dunlap, involved two prior prison term allegations under Penal Code section 667.5, subdivision (b). Elmore, like Dunlap, involved evidence used to prove those allegations which came from outside the records of the prior convictions. In Dunlap, the extra-record evidence was a CLETS printout; in Elmore, it was the defendant’s testimony from the current trial. And Elmore, like Dunlap, held that the extra-record evidence was admissible to prove the fact of two prior prison terms. Elmore also had the extra issue of whether the defendant had been free from custody for five years; it held the extra-record evidence was admissible on that issue as well.
The holdings in Elmore and Dunlap fall under the rule of Martinez: “[E]vidence other than the record of conviction and certified prison records under section 969b…is admissible to establish matters other than the nature and circumstances of the conduct underlying a prior conviction.” (Martinez, 22 Cal.4th at p. 116 [emphasis added].) On those matters, the Martinez/ Dunlap/Elmore rule applies. On the other matter of whether a prior conviction is a serious felony–i.e., the “nature and circumstances of the conduct underlying a prior conviction”–the Guerrero/Myers/Reed/Rodriguez/Woodell/ Kelii rule applies. Neither has anything to do with the other.
Appellant’s case, of course, did require the trial court to determine whether his prior conviction in 82-10270 was a serious felony. That is the issue which falls under the Guerrero/Myers/Reed/Rodriguez/Woodell/Kelii rule. Conversely, the Martinez/Dunlap/Elmore rule is irrelevant on this issue. The trial court erred in ruling otherwise.
The above explanation is detailed, in case it might otherwise be difficult for this Court to recognize that the trial court made such a basic error. Appellant presumes the trial court’s error is now beyond peradventure. Still, the error–though very basic–may be understandable: The prosecution’s briefing, quoting a sentence from Elmore selectively and out of context and not discussing any Supreme Court case on point, seems to be what led the court into error. Appellant could take up more space in the text analyzing why this is so, but it shouldn’t matter to the result; all that should matter are the Supreme Court opinions discussed above. If this Court does wish to see appellant’s analysis of why the prosecution’s briefing was probably what led the trial court into error, appellant relegates it to the footnote below. [Footnote 2]
The prosecution below also–selectively–cited People v. Moenius (1998) 60 Cal.App.4th 820. However, the prosecution admitted its citation of Moenius related not to whether the prior conviction was a serious felony, but rather, to Moenius’s identity: “[T]he court allowed the officer, who arrested the defendant for the prior offense which resulted in the prior conviction, to testify at the trial on the prior that the defendant that was then before the court was the same individual he arrested for the prior conviction.” (CT 131-132.) The prosecution didn’t mention that “the court” which allowed this testimony in Moenius was the trial court (not the Court of Appeal), there is no evidence that Moenius objected to it in the trial court, and the propriety of this testimony was not at issue in the Court of Appeal.
As our Supreme Court recently reiterated in Martinez, opinions are not authority for propositions not considered. (People v. Martinez, supra, 22 Cal.4th at p. 118.) In addition, Moenius was also like People v. Tenner (1993) 6 Cal.4th 559, in which the defendant’s identity as the subject of the prior proceedings was not disputed in the trial court, and thus the Supreme Court held it was not properly raised on appeal. (Id. at p. 563, fn. 1.)
Moenius therefore contains no precedent which is arguably relevant here. But even if what the prosecution selectively cited from Moenius had been precedential, Moenius would then have been a Martinez/Dunlap/Elmore opinion–correct in its holding, and inapplicable to this case.
Indeed, the specific issue in Martinez was the same issue as the one the prosecution here claimed from Moenius, the identity of the defendant who suffered the prior convictions. (See Martinez, supra, 22 Cal.4th at pp. 112-113, 118.) Martinez held that the identity of the defendant–and anything else “other than the nature and circumstances of the conduct underlying a prior conviction”–could be proved by evidence from outside of the prior record of conviction or a 969b packet, because “[the] limitations [of People v. Guerrero, supra] apply only to proof of ‘the circumstances of the prior crime.'” Martinez, supra, 22 Cal.4th at pp. 116-117 [quoting People v. Reed, supra, 13 Cal.4th at p. 223].) Since even the prosecution’s misuse of Moenius falls directly under a holding of Martinez, it would at most present a case under the rule of Martinez/Dunlap/Elmore, and thus would still be irrelevant to this case which falls under the rule of Guerrero/Myers/Reed/Woodell/Rodriguez/Kelii.
D. The Prosecution’s Evidence Was Insufficient To Prove That The Prior Conviction In No. 82-10270 Was A Serious Felony
Because the law discussed above makes clear that Mr. E’s jury trial testimony could not be considered in the trial of the “strike” allegation, the only evidence properly before the trial court were the documents which the trial court properly admitted. Those documents provided no evidence that the prior conviction in No. 82-10270 was a serious felony. There was thus no evidence of a “strike.”
On a sufficiency of evidence claim, a reviewing court considers the record in a light most favorable to the judgment (ante, p. ), and considers the whole record of evidence presented to the trier of fact. (People v. Bradford (1997) 15 Cal.4th 1229, 1329; People v. Cuevas (1995) 12 Cal.4th 252, 261; see also, e.g., People v. Miller (1990) 50 Cal.3d 954, 992 [court determines whether properly admitted evidence was such that a reasonable trier could have found against defendant beyond a reasonable doubt]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766 [sufficiency of evidence review limited to evidence that was before trier of fact]; People v. Jackson (1992) 7 Cal.App.4th 1367, 1372-1373 [same]; Schumpert v. Tishman Co. (1988) 198 Cal.App.3d 598, 601, fn. 2.)
In cases where the “entire record of [the prior] conviction” properly in evidence goes further than the mere conviction itself, and provides evidence of specific acts beyond the least adjudicated elements of the offense of conviction, then those specific acts may be considered. (E.g., People v. Hayes (1992) 6 Cal.App.4th 616, 621-624; People v. Jones, supra, 75 Cal.App.4th at p. 632 [citing People v. Myers, supra, 5 Cal.4th at pp. 1200-1201].) However, in this case, the evidence before the trier of fact in the priors trial didn’t go beyond the existence of the prior convictions in Nos. 82-10270 and 82-10271, and the statutes under which they arose.
The trial of the prior conviction allegations was submitted on five exhibits (RT 290-291, 294), reprinted beginning at CT 190. Exhibits 2 and 4 (CT 192-193, 206-215) are documents from Case No. 82-10271. Since the trial court found the prior serious felony conviction allegation for 82-10271 not true (CT 141), Exhibits 2 and 4 are irrelevant to this appeal.
Exhibit 1 was a “Certified Statement of Conviction” in 82-10270. (CT 190.) That document gave only the charges of conviction, the 1982 indictment date, the 1983 plea date, and the sentences. (CT 201) The “Certified Report of Disposition” in Exhibit 5 and an “Order of Sentence and Commitment in Exhibit 3” provided the same information, and no more of relevance. (CT 201, 205.) Two arrest reports in Exhibit 3 were hearsay, but in any event contained the same information and nothing more of relevance. And in Exhibit 3, there are two charging documents which contain only the language and statute number of the controlling indecent liberties and aggravated battery statutes, 38 Ill Rev. Stat. §§ 11-4 [indecent liberties] and 12-4(c) [aggravated battery]. (CT 198-200.) [Footnote 3]
The prosecution did not claim that the least adjudicated elements of the indecent liberties conviction were a serious felony–correctly, since as shown above, they are not. (See ante, pp. -.) Similarly, the prosecution did not claim that the least adjudicated elements of the aggravated battery conviction were a serious felony, and did not rely on the aggravated battery conviction at all, again correctly. (See footnote below.) [Footnote 4]
Appellant pled guilty in No. 82-10270. There is no transcript of his guilty plea or sentencing in this record. And none of the documents in evidence specifically state the precise offense to which appellant actually pled guilty, beyond the least statutory elements of the offense. Based on the documents in evidence, appellant may well have entered a plea to only the least statutory elements of the offense in 82-10270–especially since that was all he was charged with. (CT 198-200.) There is no evidence he didn’t.
In short, there is no evidence as to No. 82-10270 beyond the least statutory elements of the offenses of conviction, which as shown above do not constitute a California serious felony. (See ante, pp. -.)
Accordingly, the evidence is insufficient to support the trial court’s true finding on the “strike” allegation. The true finding must be reversed, under state law and the Fourteenth Amendment. (People v. Johnson, supra, 26 Cal.3d at pp. 576-578; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 523; Jackson v. Virginia, supra, 443 U.S. at p. 319.)
V. THE TESTIMONY FROM THE CURRENT TRIAL WAS NOT A MATTER ADMITTED INTO EVIDENCE WHICH COULD SUPPORT A PRIOR SERIOUS FELONY CONVICTION FINDING; ON THIS SEPARATE GROUND, THERE WAS NO EVIDENCE TO SUPPORT THE “STRIKE” FINDING
Independent of the previous Argument, there was another fatal defect in the evidence underlying the “strike” finding as to No. 82-10270: The testimony from the jury trial which the trial court considered (CT 141) was not a matter admitted into evidence which could have supported a “strike” finding, because of the limited purpose for which the testimony had been admitted in the jury trial. Thus, even if arguendo the trial court’s case of People v. Elmore, supra [discussed ante, pp. -]–and the similar cases of People v. Martinez and People v. Dunlap [discussed ante, pp. -]–could have been used for a Guerrero/Myers/Reed/Woodell/Rodriguez issue, they still couldn’t have been used for the priors trial in this case.
On this separate ground as well, there was no evidence to support the “strike” allegation. The true finding must be reversed.
As in the previous Argument, on a sufficiency of evidence claim, a reviewing court considers the record in a light most favorable to the judgment. (Ante, p. .) The trial court considers the whole record of evidence presented to the trier of fact. (People v. Bradford, supra, 15 Cal.4th at p. 1329; People v. Cuevas, supra, 12 Cal.4th at p. 261; see also, e.g., People v. Miller, supra, 50 Cal.3d at p. 992 [court determines whether properly admitted evidence was such that a reasonable trier could have found against defendant beyond a reasonable doubt].)
As a result, a sufficiency of evidence review is limited to evidence that was actually before the trier of fact. (Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 766; People v. Jackson, supra, 7 Cal.App.4th at pp. 1372-1373.) That is the Fourteenth Amendment standard as well as the state-law standard. (Jackson v. Virginia, supra, 443 U.S. at p. 318 [reviewing court determines “whether record evidence could reasonably support a finding of guilt beyond a reasonable doubt”] [underscoring added].) It also emanates from the settled rule of appellate practice that a reviewing court will not consider evidence which was not presented to or passed upon by the trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1997) 14 Cal.4th 434, 444, fn. 3; Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 910, fn. 5; Schumpert v. Tishman Co., supra, 198 Cal.App.3d at p. 601, fn. 2.)
As discussed ante, p. , the trial court relied on Mr. E’s current jury testimony, in finding the “strike” allegation true. Mr. E testimony related to conduct by appellant which Mr. E said occurred in Illinois in 1982. (RT 161, 165.) None of Mr. E’s testimony involved the charged current offenses, alleged to have occurred in California in 1998. (CT 17-18.)
In the jury trial, the trial court had limited the purposes for which the jury was permitted to consider Mr. E’s testimony. The trial court instructed the jury under the pre-1999 version of CALJIC No. 2.50.01:
Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in this case. . . .
If you find that the defendant committed a prior sexual offense, you may, but are not required to[,] infer that the defendant had a disposition to commit the same or similar type sexual offenses.
If you find that the defendant had this disposition, you may, but are not required, to infer that he was likely to commit and did commit the crime or crimes of which he is accused. . . .
. . . The weight and significance of the evidence, if any, are for you to decide. You must not consider this evidence for any other purpose.
(RT 268:23-26, 269:8-17, 23-26 [underscoring added].)
Based on the above instruction, the jury was permitted to consider Mr. E’s testimony for only one purpose–on the issue of whether the defendant had a disposition to commit sexual offenses, which if found by the jury could then be used to conclude appellant was guilty of the current charges. The jury was specifically instructed that it “must not consider this evidence for any other purpose.” (Emphasis added.) That limiting instruction reflected the fact that the evidence (Mr. E’s testimony) was only admitted for a limited purpose; when a trial court does that, it may give the jury an instruction restricting the evidence to its proper scope. (Evid. Code, § 355; see, e.g., People v. Brogna (1988) 202 Cal.App.3d 700, 710.) That is what the trial court did here, in giving the limiting instruction quoted above.
In short, this testimony was only admitted for the limited purpose of whether appellant had a disposition to commit sex offenses. The jury was instructed to consider the evidence solely for that purpose. (RT 269:25-26.) It is presumed the jury followed its instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331; People v. Morris (1991) 53 Cal.3d 152, 217 [limited purpose instructions]; People v. Romo (1975) 14 Cal.3d 189, 194 [same] Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1163 [same].)
Thus conversely, the jury is presumed not to have considered the evidence for any purpose other than the one permitted by the instructions. That includes the purpose relevant here: determining whether appellant’s prior conviction in 82-10270 was a serious felony, i.e., whether his prior conviction “include[d] all of the elements of the particular felony as defined in [the violent and serious felony statutes, sections 667.5(c) and 1192.7(c)].” (Pen. Code, § 667, subd. (d)(2).)
Among those elements which had to be determined was the factual issue of whether Mr. E was under 14 years of age at the time appellant committed the acts to which Mr. E testified. Only a lewd act with a child under 14 would qualify as a serious felony. (See ante, p. .) Although Mr. E testified in the current jury trial that he was under 14 years of age at that time (RT 163), the jury was instructed that it was not to use Mr. E’s testimony for the purpose of determining that particular question, or for any other purpose beyond the one in its instructions, determining disposition. (RT 268-269.) Mr. E’s testimony of his age–and all of the rest of Mr. E’s testimony–was considered by the jury on the sole issue of disposition, and no other. (See also Thompson v. Municipal Bond Co. (1937) 23 Cal.App.2d 402, 412 [when evidence admitted for limited purpose, other purposes, including truth of evidence, are not within scope of evidence]; People v. Craig (1957) 49 Cal.2d 513, 520 [when evidence admitted for limited purpose, misconduct to argue other purposes, including substantive truth of evidence]; People v. Renchie (1962) 201 Cal.App.2d 1, 6-7 [same] [limited o.g. in People v. Haston (1968) 69 Cal.2d 233, 250, fn. 22].)
In the subsequent priors trial, the trial court relied on People v. Elmore, supra, 225 Cal.App.3d at p. 957, for the proposition that it could consider Mr. E’s testimony in adjudicating whether the prior conviction in No. 82-10270 was a serious felony. (CT 141.) That followed the lead of the prosecution, which cited Elmore for the proposition that “[t]o preclude the court from considering evidence properly before it during another part of the trial would be unnecessarily rigid and would hamper, rather than further, the interests of justice.” (CT 132 [underscoring added] [citing People v. Elmore, supra, 225 Cal.App.3d at p. 957].)
Here, however, Mr. E’s testimony as to his age was not–to use the prosecution’s language–“properly before [the trier of fact] during another part of the trial.” Unlike most cases and situations where evidence is admitted without restriction, Mr. E’s testimony was evidence which was only before the jury for a limited purpose, namely, as evidence of possible disposition to commit sex offenses. Because of that limitation, Mr. E’s testimony was not before the jury for any other purpose–including purposes such as adjudicating whether the prosecution had proved beyond a reasonable doubt all of the elements of a serious felony, a requirement in a “strike” trial. (Pen. Code, § 667, subd. (d)(2).) In short, Mr. E’s testimony was only evidence before the jury with respect to disposition, and not with respect to any other issue, including the “nature and circumstances of the conduct underlying a prior conviction” (People v. Martinez, supra, 22 Cal.4th at p. 116).
In the priors trial on No. 82-10270 (the one on appeal here), the trial court was not called upon to determine any issues of disposition. The only issue before the trial court in the priors trial was whether the evidence proved–beyond a reasonable doubt–that appellant had suffered a prior conviction “that includes all of the elements of [a serious] felony” (Pen. Code, § 667, subd. (a)(2).) That was not a purpose for which the jury had been permitted to consider Mr. E’s testimony in the jury trial.
In short, as to the only issue in the priors trial–whether the prosecution had proved beyond a reasonable doubt that a prior conviction had all the elements of a serious felony–Mr. E’s testimony was not “evidence presented during the jury trial” (to use the trial court’s language, at CT 141). The testimony was evidence on the sole issue of what, if any, disposition appellant might have had to commit sex crimes. It was not before the jury for its substantive truth, i.e., the nature and circumstances of the acts appellant committed with Mr. E. The was evidence admitted for a limited purpose in the jury trial. That limited purpose did not correspond to anything the court was deciding in the priors trial.
Because Mr. E’s testimony had not been evidence before the jury for any purpose which would have been proper in the priors trial, the trial court had no basis for invoking Elmore to use that testimony in the priors trial.
The analysis which Elmore used to justify admitting Elmore’s testimony in his subsequent priors trial was based on the fact that the evidence had already been admitted in the jury “trial of the underlying charge”:
Elmore cites no authority to support his claim that evidence from the trial on the underlying offense cannot be considered at the trial on the subsequent enhancement allegations. To preclude the court from considering evidence properly before it during another part of the trial would be unnecessarily rigid and would hamper, rather than further, the interests of justice.
(People v. Elmore, supra, 225 Cal.App.3d at p. 957 [emphasis added].) In other words, the analysis and holding of Elmore refer solely to evidence which was actually before the jury during the jury (guilt phase) trial.
By contrast here, the trial court used Elmore to consider limited purpose testimony that was not, in Elmore‘s words, “evidence properly before it during another part of the trial.” The testimony was evidence which the jury could have used to find disposition; but for any other purpose, the testimony was not evidence before the jury at all. Since the priors trial was not to adjudicate disposition, but rather was to adjudicate the nature and circumstances of prior acts allegedly committed by appellant, the testimony was not evidence before the jury in any way relevant to the priors trial.
As a result, with respect to non-disposition issues, Mr. E’s testimony had the same status as non-evidence before the jury as did anything else that wasn’t in evidence. (See also, e.g., People v. Romo, supra, 14 Cal.3d at p. 195 [when jury was given limiting instruction that witness’s statement was to be considered solely for impeachment {though the law also supported admitting it substantively}, witness’s statement was “not . . . evidence that defendant had made an admission against his interest,” and as a result, “no admission by defendant against his interest was received in evidence”]; People v. Watkins (1967) 248 Cal.App.2d 603, 608 [after receiving limiting instruction on evidence admitted as to one defendant, jury “could not reasonably weigh” that evidence in relation to guilt or innocence of the other defendant]; see also Warner Construction Co. v. City of Los Angeles (1970) 2 Cal.3d 285, 298-299 [“A trial becomes unfair if testimony thus accepted [for a specified limited purpose] may be used in an appellate court as though admitted for a different purpose, unavowed and unsuspected.”].)
Consequently, Elmore did not support the trial court’s use of testimony which, for any purpose relevant to the priors trial, had been non-evidence in the jury trial. The trial court erred in invoking Elmore for a proposition that opinion clearly didn’t support. And no other legal authority would have permitted the trial court to consider Mr. E’s jury testimony in the priors trial. Nor did the trial court or the prosecution cite any.
Because Mr. E’s testimony was not before the trier of fact in the priors trial, it cannot be considered in evaluating sufficiency of evidence. Under the Fourteenth Amendment, if there is not evidence sufficient to convince a rational trier of fact beyond a reasonable doubt of the truth of a charge, a judgment on that charge cannot stand. (Jackson v. Virginia, supra, 443 U.S. at pp. 316, 317, 319, 321, 324; People v. Johnson, supra, 26 Cal.3d at pp. 576-578.) Since sentencing allegations which are submitted to a trier of fact must be proved beyond a reasonable doubt (People v. Tenner (1993) 6 Cal.4th 559, 566), the same standard applies. (People v. Woodell, supra, 17 Cal.4th at p. 461; People v. Henley (1999) 72 Cal.App.4th 555, 561; People v. Williams (1996) 50 Cal.App.4th 1405, 1412-1413.)
Accordingly, and in light of the standards discussed ante, pp. -, no evidence supports the true finding on the “strike” allegation. As a result, the true finding should be reversed, under state law and the Fourteenth Amendment. (People v. Johnson, supra, 26 Cal.3d at pp. 576-578; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 523; Jackson v. Virginia, supra, 443 U.S. at p. 319.)
FOOTNOTES:
Footnote 1: To be precise, a “strike” can be either a prior serious or violent felony conviction, under sections 1192.7(c) or 667.5(c). (Pen. Code, § 667, subd. (d)(2).) However, appellant is under the general impression that the category of serious felonies completely incorporates violent felonies; and that if it turns out there is an exception or two, they would be wholly irrelevant to this case (since the only “lewd act” crime that is a “strike” requires a lewd act with a child under 14, under both section 1192.7(c)(6) and section 667.5(c)(6)). Thus, for convenience and simplicity, appellant will refer to a “strike” generically as a “prior serious felony” conviction.
Footnote 2: The prosecution’s brief in this case asked the trial court to decide whether appellant’s prior conviction in 82-10270 was a serious felony, by considering a prior victim’s testimony in the current trial. Claiming that Elmore supported this result, the prosecution’s brief said that in Elmore, “The trial court considered Elmore’s trial testimony wherein he admitted that he had been convicted of several felonies and had been released from prison before committing the new charge in finding the prior allegation to be true. The appellate court found this to be permissible and went on to state, ‘To preclude the court from considering evidence properly before it during another part of the trial would be unnecessarily rigid and would hamper, rather than further, the interests of justice.’ Elmore at 958.” (CT 132.)
The prosecution’s statement above was accurate, and the sentence from Elmore was accurately quoted. However, both were totally out of context when it came to appellant’s case. Elmore, unlike this case, did not involve the Guerrero/Myers/Reed/Rodriguez/Woodell issue of whether a prior conviction was a serious felony. Rather, Elmore involved the Martinez/Dunlap issue of whether a defendant served prior prison terms.
The Elmore opinion involved what that Court called “the limited issue before us,” sufficiency of the evidence of two prior prison term enhancements under section 667.5(b). (Elmore, 225 Cal.App.3d at p. 956.) Elmore “challenge[d] both prior conviction findings [battery on a peace officer in 1983, and petty theft with a prior in 1978] by arguing that there was no evidence he actually served and completed a prison term for either . . . conviction.” (Id. at p. 957.) During his trial on the current charge under section 288, Elmore gave testimony about his prior convictions and incarcerations, which the prosecution later used at the priors trial to prove he served prison terms for each of the two prior convictions.
That was the only issue decided by the Elmore Court in the reasoning which included the sentence selectively quoted by the prosecution below. (Id.) The fuller version of the sentence quoted by the prosecution, this time quoted in context, makes that even clearer:
Initially, Elmore contends that as the prosecutor did not offer his testimony at the portion of the trial on the prior convictions, it was not properly before the court. We disagree. The testimony was given during the trial of the underlying charge. Elmore cites no authority [for] his claim that evidence from the trial on the underlying offense cannot be considered at the trial on the subsequent enhancement allegations. To preclude the court from considering evidence properly before it [in] another part of the trial would be unnecessarily rigid and would hamper, rather than further, the interests of justice.
(Id. [emphasis in original].)
As our Supreme Court recently held in Martinez when discussing the Guerrero case, one cannot use language of a prior opinion on the issue currently before the court, when the prior opinion never considered that issue. Simply put: “Cases are not authority for propositions they do not consider.” (Martinez, 22 Cal.4th at p. 118.)
The Supreme Court used that settled law in Martinez to show why the Guerrero/Myers/Reed/Rodriguez/Woodell/Kelii line of cases did not apply there. The converse is true here: This case falls under the rule of Guerrero/Myers/Reed/Rodriguez/Woodell/Kelii, and the rule of Martinez/Dunlap/Elmore does not apply here, because a case such as Elmore “[is] not authority for propositions [it does] not consider.” The prosecution and the trial court erred by using a Martinez/Dunlap/Elmore analysis, when this is a Guerrero/Myers/Reed/[et al.] case.
Footnote 3: As noted ante, p. , the defense objected to the two-page “Official Statements of Facts” as hearsay; and as having been prepared by a prosecutor postjudgment, and thus not within the “entire record of conviction” which is the only allowable evidence on whether a prior conviction is a serious felony (as discussed herein). The trial court sustained the hearsay objection and thus did not consider these documents. (CT 141.) The court presumably would have reached the same result had it ruled on the defense’s other objection, as there was no evidence those documents were part of appellant’s sentencing–or more particularly, no evidence they were anything other than documents written by the case prosecutor after sentencing, for the benefit of the state Department of Corrections in its placement and early release decisions. Indeed, under long-standing Illinois practice, that is exactly what the documents were. (See, e.g., 730 Ill. Comp. Stat., § 5/5-4-1, subd. (d) [current statutory authority]; Heirens v. Mizell (7th Cir. 1983) 729 F.2d 449, 457-458 [discussing such postjudgment documents by description, title, and legal authority and noting parole agency considers them “official”]; People v. Wooten (1946) 392 Ill. 542, 546 [64 N.E.2d 857, 859] [similar]; 20 Ill. Adm. Code, §§ 107.20 subd. (a)(6), 701.60 subd. (e)(6), 702.60 subd. (b)(5)(F), 1610.50 subd. (b)(2).) (For more opinions which reflect Illinois’ long-time use of the title “Official Statement of Facts” for this type of document, see, e.g., Dreyer v. Illinois (1902) 187 U.S. 71, 80; People v. Saxton (1948) 400 Ill. 257, 260 [79 N.E.2d 601, 603]; People v. Swaney (1971) 2 Ill.App.3d 857, 860 [276 N.E.2d 346, 348]; United States ex rel. Johnson v. McGinnis (7th Cir. 1984) 734 F.2d 1193, 1195; United States v. Fulton (N.D. Ill. 1984) 587 F.Supp. 1066, 1067.)
Footnote 4: The aggravated battery charge under 38 Ill. Rev. Stat. § 12-4(c), as then controlling, alleged that appellant administered an intoxicating substance for nonmedical purposes. (CT 200.) In full, the relevant statute was:
A person who administers to an individual or causes him to take, without his consent or by threat or deception, and for other than medical purposes, any intoxicating, poisonous, stupefying, narcotic or anesthetic substance commits aggravated battery.
(38 Ill. Rev. Stat § 12-4(c) (1977) [as reproduced at CT 58; see also People v. Jones (1979) 74 Ill.App.3d 243, 245 [392 N.E.2d 973, 974]].) Obviously, the least adjudicated elements of this crime do not constitute a California serious or violent felony. They appear to be no more than misdemeanor battery, in violation of Penal Code sections 242/243.
