Super. Ct. Nos. SCE283936, SCD206794, SCD207107 APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed as modified.
The opinion of the court was delivered by: Benke, J.
CERTIFIED FOR PUBLICATION
In this case, in proving the occurrence of prior convictions the prosecution relied upon certified copies of the appellants' "prison packets." We reject the appellants' contention admission of the packets violated the confrontation clause of the Sixth Amendment. The documents in the prison packets were prepared for non-testimonial purposes and as such were admissible hearsay. Moreover, the certificates by which the prison packet documents were authenticated attested to matters which are outside the protection of the Sixth Amendment.
Like the Attorney General, we agree each of four $600 fines imposed on one appellant under Penal Code*fn1 sections 1202.4 and 1202.44 must be reduced to $200 and that a one-year prior prison enhancement imposed on the other appellant must be stricken.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted appellants Michael Eugene Perez and Keith Maurice Hill of burglary. The jury also found true allegations the burglary was of an inhabited dwelling and that another person, other than an accomplice, was present in the dwelling during the commission of the crime. (§§ 459, 460, 667.5, subd. (c)(21).)
The trial court found Perez suffered a prior prison term within the meaning of section 667.5, subdivision (b), three prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and three prior "strikes" within the meaning of section 667, subdivisions (b) through (i).) The trial court found Hill suffered two prior serious felony convictions within the meaning of 667, subdivision (a)(1), and two prior "strikes" within the meaning of section 667, subdivisions (b) through (i).
In proving the prior prison terms, prior felony convictions and prior strikes, the prosecution offered "prison packets" which contained documents certified as the true and correct copies of documents kept by penal institutions. Both Perez and Hill objected to introduction of the "prison packet" documents on the grounds their admission violated the confrontation clause of the Sixth Amendment.
The trial court struck two of Perez's strikes and sentenced him to a total of 23 years in prison. The trial court struck one of Hill's strikes and sentenced him to 18 years in prison.
Perez and Hill both filed notices of appeal.*fn2
I In their principal argument on appeal, both appellants argue admission of documents which purport to be certified copies of documents in the custody of penal institutions is impermissible under the Sixth Amendment. They argue the certifications of the respective custodians of those documents that the documents are in fact true and correct copies of documents of the respective institutions are testimonial and thus subject to the requirements of the Sixth Amendment. They implicitly contend that the documents could only be admitted if the respective custodians of records were available for cross-examination.
Appellants rely on Melendez-Diaz v. Massachusetts (2009) __U.S.__ [129 S.Ct. 2527, 2532] (Melendez-Diaz), in which the Supreme Court held a certificate executed by a forensic analyst as to the results of a drug analysis was plainly prepared for use at trial and therefore inadmissible under the Sixth Amendment. Appellants argue the certificates of the custodians of records, which attested to the nature and accuracy of the documents in the prison packets, are analogous to the forensic chemist's certification of the nature of the substance he examined. We reject appellants' contention.
In Melendez-Diaz: "The high court distinguished the forensic analysts' reports, which were testimonial, from a clerk's certificate authenticating an official record for use as evidence. (Melendez-Diaz, supra, 557 U.S. at p.___ [129 S.Ct. at p. 2539].) A clerk, the court explained, 'could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did [in Melendez-Diaz]: create a record for the sole purpose of providing evidence against a defendant.' [Ibid., fn. omitted.).]" (People v. Moreno (2011) 192 Cal.App.4th 692, 711.) Here, the respective custodians' declarations authenticating the documents in the prison packets "are precisely the kind authenticating affidavit approved of in Melendez-Diaz." (Ibid., see also ...