Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 04F00892
MORRISON, J.
A jury convicted defendant Branden Bernard Perez of arson of an inhabited structure (Pen. Code, § 451, subd. (b)). The trial court sustained a strike allegation and sentenced defendant to 10 years in prison.
On appeal, defendant contends that subscriber information for a cell phone attributed to him was erroneously admitted hearsay evidence, and the use of a prior juvenile conviction as a strike violated due process. We shall reject the contentions and affirm.
BACKGROUND
Between 1:30 a.m. and 2:00 a.m. on January 3, 2004, Aaron Melius was driving by the Norwood exit on Interstate 80 when he saw a fire at an apartment complex. Fire was coming out of the windows of the apartment of Takiyah Carter. There were two separate fires, one on the stovetop and the other around the bed in the master bedroom. The fire investigator concluded that the fires were caused by arson.
Carter had been in a romantic relationship with defendant since August 2003. The relationship was “rocky” and Carter was seeing several other people at the time of the fire.
Carter, who testified under immunity, stated she was out of the apartment at the time of the fire and had no contact with defendant on the day preceding the incident. On the night of the fire, Carter was in a motel room with a man named Damon Banks.
Carter said she burned her own apartment in order to get back at defendant for seeing another woman. She started two fires, one by placing on her bed a curling iron set on high, and the other by putting linens on the stovetop and turning all of the burners on high. Carter did not see whether she started a fire because she left before any flames appeared.
Carter first admitted telling the fire investigator she thought defendant started the fire, but later denied remembering anything about the interview. Robert Moore, a fire investigator for the Sacramento Fire Department, interviewed Carter on January 5, 2004. A tape and transcript of the interview were admitted as evidence.
In the interview, Carter tells the investigator she thinks defendant started the fire because he called her a few days earlier, telling Carter, “If I don’t come, if I don’t leave town that something really bad is going to happen.” Defendant told Carter this on a telephone call between 11:30 p.m. and midnight on January 2, 2004. Defendant had a key to the apartment, and had previously entered her apartment when Carter was not there.
Carter told the investigator no one was in the apartment on the night of the fire, and she did not expect defendant to show up at her apartment. Defendant overheard a conversation between Carter and another man, which angered him. Carter spoke with defendant after the fire. He told Carter he was sorry and he loved her. When asked why he set the fire, defendant told Carter she had made him mad.
Tia Henderson, formerly Tia Farthing, is a friend of Carter’s and knows defendant. She got two telephone calls the night of the fire. She did not answer the first call, but in the second call the caller told her there was a fire at Carter’s apartment and she needed to go there and check on it. She did not know who made the call, and Henderson had never given her number to defendant.
Henderson was interviewed by Moore. She told the investigator defendant was the person who called her about the fire. The first call came at between 2:05 and 2:15 a.m., while the second took place between 2:30 and 2:40 a.m. She knew it was defendant because he was the only person who called Carter “Kia.”
Vernice Miramontes lived next door to Carter’s apartment. On the night of the fire, Miramontes was up late watching television when she heard a door slam and a sound like someone storming down the hallway. She looked outside and saw a man exiting the apartments. Miramontes had seen this man before, passing by when he entered the apartment next door. She could not identify the man at trial.
Defendant had a cell phone with the number 916-256-5787. Carter’s cell phone number was 916-613-3358 at the time of the fire and Henderson’s number was 916-256-5064.
A custodian of records for Metro PCS testified regarding calls made from 916-256-5787 to 916-613-3358, and 916-256-5064. All three numbers belonged to Metro PCS subscribers. The company keeps a subscriber information form in the normal course of business. A subscriber provides his or her name, address, city, zip code, date of birth and other information, which is then given to a Metro PCS employee who enters the information into the Metro system. The final form lists the identifying information along with the customer’s account number. Since Metro PCS is a prepaid phone company, it does not verify the information provided by the customer.
For example, there are over 50 Metro PCS accounts for Donald Duck.
The subscriber listed on the form for 916-256-5787 was Arman Miller of 3929 48th Avenue, Apartment No. 24, Sacramento, California, 95823-1163, with a home phone number of 415-284-3420. Metro’s records show that 916-256-5787 received incoming calls from 916-613-3358 on the night of the fire and made 21 outgoing calls to that number on the same night. There were also six calls from 916-256-5787 to 916-256-5064 that night, with the last call being made at 1:35 a.m. on January 3, 2004. The calls were all made from Sacramento, as Metro PCS only covers the Sacramento and San Francisco areas.
Fraitus Green-Perez, defendant’s mother, testified that on New Year’s Day she received a call from a woman named Kia, who claimed to be defendant’s girlfriend. When Kia asked where defendant was, Green-Perez replied that he was in Reno with Cavana Hawkins, his wife.
Green-Perez, who lived in San Francisco, went to Sacramento the next day because she had not yet heard from defendant who was in Reno but had been snowed in. Defendant came back from Reno early on the morning of January 3, between midnight and 2:00 a.m., and went straight to bed. Defendant was staying at 3929 48th Avenue, Apartment No. 24 in Sacramento, and Green-Perez’s home phone number is 415-285-3420.
Cheri Brown testified that she, her boyfriend, Hawkins, and defendant went to Reno on New Year’s Eve. They were snowed in until January 2, 2004, when they left in the afternoon, taking seven hours to get home.
DISCUSSION
I
Defendant contends the trial court should not have admitted the Metro PCS subscriber information. In support of his claim, defendant argues the record was inadmissible hearsay and was more prejudicial than probative.
Defendant objected to the subscribing information at trial on hearsay and Evidence Code section 352 grounds. The trial court overruled the objection, finding the information admissible under the business records exception to the hearsay rule. (Evid. Code, § 1271.)
Defendant argues the subscriber information is not an admissible business record because the information given by the subscriber was not verified and thus lacks the trustworthiness necessary for admission under the business records exception. We do not need to address whether the subscriber information was qualified as a business record because the subscriber information was not admitted to prove the truth of the matter stated.
The theory of admissibility for the subscriber records was not that Arman Miller of 3929 48th Avenue, Apartment No. 24, Sacramento, California, 95823-1163, with a home telephone number of 415-284-3420 was the subscriber for 916-256-5787, but that someone subscribed for that number under a false name, by providing information which, when verified by other evidence, tied defendant to that number. The evidence was relevant, as the address provided was defendant’s, and the home telephone number on the application differed by one digit from the telephone number of defendant’s mother.
Hearsay evidence is “evidence . . . that is offered for the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) A false name on an application is not hearsay because it is not being used to prove the truth of the matter -- that the applicant has that name -- but rather that defendant made a false application for the phone line under that name. The relevance is not that the name was accurate, but that it was false. (See People v. Koch (1970) 4 Cal.App.3d 270, 274 [false unemployment compensation forms not hearsay because the prosecution’s theory was that the forms were false].)
In United States v. Lieberman (2d Cir. 1980) 637 F.2d 95, the Second Circuit held that an unverified hotel registration card was admissible as nonhearsay to show that someone by the name on the card registered at the room. (Id. at p. 101.) The card could be admitted “for the limited non-hearsay purpose, with other evidence admitted from which the jury could infer that the hotel card spoke the truth.” (Ibid.) Similar conclusions were reached by the Court of Appeal, Second Appellate District, Division Seven and the federal Tenth Circuit, as both have upheld as non-hearsay the use of unverified information on hotel and motel registration cards that is verified through other evidence. (See People v. Erving (1961) 189 Cal.App.2d 283, 290-291; U.S. v. Moreno (10th Cir. 1996) 94 F.3d 1453, 1454-1455.)
Following these authorities, we reach the same conclusion regarding the unverified information on the subscriber application. The application was admissible for the nonhearsay purpose of showing that the subscriber for 916-256-5787 provided a home address and telephone number that could be tied to defendant through other evidence. The evidence tying defendant to the information in the application was provided through testimony establishing defendant’s home address and his mother’s telephone number. This inference was strengthened by Carter’s statement to the fire investigator that defendant’s cell phone number was 916-256-5787. The subscriber information was therefore admissible for this nonhearsay purpose, which was how the prosecution used it.
By tying defendant to the 916-256-5787 cell phone, the subscriber information was highly relevant, providing evidence that defendant made the calls to Henderson regarding the fire, and by showing that he could not be in Reno at the time of the fire because Metro PCS does not provide service in Nevada. This evidence was not unfairly prejudicial and therefore was properly admitted by the trial court.
II
In a supplemental brief, defendant contends his one strike sentence violated his right to due process because the strike was based on a prior juvenile conviction. Relying on People v. Nguyen (2007) 152 Cal.App.4th 1205, 1226, 1239 [petition for review granted October 10, 2007, No. S154847] (Nguyen), defendant contends that using a juvenile conviction as a strike violates the Fourteenth amendment, as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi). We disagree with appellant’s argument and the reasoning in Ngyuen.
While the California Supreme Court will decide the fate of this contention in Nguyen, supra, 152 Cal.App.4th 1205, defendant’s argument raises broader issues concerning the interpretation of Apprendi and its progeny which warrant further discussion.
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.)
The Apprendi court recognized the prior conviction exception on the basis of the Supreme Court’s decision in Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350] (Almendarez-Torres). (Apprendi, supra, 530 U.S. at pp. 489-490 [147 L.Ed.2d at pp. 454-455].) In Almendarez-Torres, defendant claimed “the Constitution requires Congress to treat recidivism as an element of the offense . . . .” (Almendarez-Torres, supra, 523 U.S. at p. 239.) Among the reasons for the court’s rejection of this claim were that recidivism is a traditional reason for increasing sentences, and Congress’s use of prior convictions was not an attempt to “evade” the Constitution by “presuming” guilt or “restructuring” the elements of an offense. (Id. at pp. 243-244, 246.)
In Jones v. United States (1999) 526 U.S. 227 [143 L.Ed.2d 311] (Jones), the Supreme Court construed the “serious bodily harm” allegation in the federal carjacking statute as an element of the offense because treating it like a sentencing factor would raise “‘grave’” constitutional issues. (Id. at p. 239.) In distinguishing Almendarez-Torres, supra, 523 U.S. 224 [140 L.Ed.2d 350], Jones declared that decision “rested in substantial part on the tradition of regarding recidivism as a sentencing factor”, and because “a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” (Id. at p. 249.) This construction of Almendarez-Torres was applied by the Supreme Court in Apprendi. (Apprendi, supra, 530 U.S. at p. 488 [147 L.Ed.2d at p. 454].)
Defendant argues the use of a prior juvenile conviction as a strike violates Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435] because juvenile determinations are not “constitutionally reliable and because the right to jury trial on conduct used to impose imprisonment is itself deserving of due process protection.” Both contentions are incorrect, as they rely on a far too expansive reading of Apprendi.
California courts uniformly rejected this argument before Nguyen, supra, 152 Cal.App.4th 1205. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1079; People v. Bowden (2002) 102 Cal.App.4th 387, 390-394 (Bowden); People v. Fowler (1999) 72 Cal.App.4th 581, 584-587) These decisions held the procedural safeguards of a juvenile adjudication, such as the rights to notice (Welf. & Inst. Code, § 658), counsel (Id., § 679), confrontation (Id., § 702.5), and the privilege against self-incrimination (Ibid.), are sufficient to allow their use to enhance criminal sentences under Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435]. (See People v. Grayson (2007) 155 Cal.App.4th 1059, 1067-1068.) We agree with these decisions.
Defendant contends the lack of a jury trial deprives juvenile adjudications of the reliability needed to be used as a prior conviction. Although the jury plays an important role in protecting the criminal defendant (see Duncan v. Louisiana (1968) 391 U.S. 145, 156 [20 L.Ed.2d 491, 500] (Duncan), it is no less true that “a jury is not a necessary part even of every criminal process that is fair and equitable,” and “[t]he imposition of the jury trial on the juvenile court system would not strengthen greatly, if at all, the factfinding function . . . .” (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 547 [29 L.Ed.2d 647, 662].)
The primarily function of the jury in a criminal trial is to protect the defendant from arbitrary government power. “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” (Duncan, supra, 391 U.S. at p. 156 [20 L.Ed.2d at p. 500].)
The right to a jury trial in criminal cases is thus fundamental because it protects the defendant by entrusting a key component of the trial to citizens instead of the government. “[T]he jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power -- a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.” (Duncan, supra, 391 U.S. at p. 156 [20 L.Ed.2d at p. 500].)
The criminal defendant is entitled to a jury trial through the Sixth Amendment not because juries are inherently more reliable fact finders than judges, but because they are an independent check on the arbitrary exercise of government power. Since there is nothing inherently less reliable or accurate in judicial factfinding, the juvenile adjudication is no less reliable than the criminal conviction.
The California Supreme Court has declared we are not to read the recidivism exception to Apprendi “too narrowly.” (People v. Black (2007) 41 Cal.4th 799, 819.) Accepting defendant’s argument would be contrary to this admonition. Although a juvenile disposition is not deemed a criminal conviction under California law (Welf. & Inst. Code, § 203), a juvenile adjudication necessarily requires the court to have found beyond a reasonable doubt that the juvenile committed a crime. (Welf. & Inst. Code, § 602.) A prior juvenile adjudication thus involves a sufficiently reliable determination of prior criminal conduct to qualify under the recidivism exception to Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435].
Allowing a juvenile adjudication to be treated as a strike does not violate any fundamental principle of justice. In the juvenile adjudication, defendant was accorded a full array of rights which are intended to produce a fair and reliable result. The Three Strikes law gave defendant both fair warning his juvenile adjudication could be treated as a strike and the rights to jury trial and proof beyond a reasonable doubt on proof of the strike allegation.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.