Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 02F08924, 06F01587
HULL, JUDGE
A jury convicted defendant Samuel Joseph Padgett of second degree burglary of a vehicle (Pen. Code, § 459; unspecified section references that follow are to the Penal Code), and the trial court found charged prior convictions to be true. (§ 667.5, subd. (b).) Sentenced to an aggregate prison term of eight years for this offense plus a consecutive term of 16 months in an unrelated case, defendant appeals. He contends that (1) the delay in arraignment violated his right to speedy trial, (2) the court erred in admitting hearsay evidence, and (3) insufficient evidence supports his conviction. None of these claims has merit and we affirm the judgment.
FACTS AND PROCEEDINGS
One night in October 2002, the victim parked his car in his driveway, locked the doors, and left the passenger’s window open a few inches. When he went out to the car in the morning, he discovered that it had been burgled. The passenger door was open, the glove compartment had been rifled, and various items had been taken from the car, including CD’s, papers, cash, and a suit. The victim could see fingerprints on the passenger’s window.
An investigator from the police department retrieved fingerprints from both inside and outside the window, and those prints were subsequently identified as defendant’s. Defendant was charged with burglary of a vehicle.
By the time trial was held in 2006, the victim’s memory had faded. He remembered that he left the passenger window rolled down a few inches, and he testified that “[t]o the best of [his] recollection,” he had locked the car, although he had no specific memory of doing so that particular night. He said that because items had previously been stolen from his car, he locked his car doors “religiously.”
The prosecutor introduced the victim’s statement to officers, made a few days after the incident. In that statement, the victim said he had locked the car doors and left the passenger’s window open a few inches. An investigator described the fingerprints found on the window, including prints on the inside of the window that were facing down. She thought the window was off its track, but she was not absolutely certain because there was no documentation to that effect. The victim testified that he noticed that the door was slightly bent, but he did not know when that had occurred or how long it had been that way. The victim no longer owned the car by the time of trial.
The jury convicted defendant of auto burglary and the court found charged prior convictions to be true. This appeal followed.
DISCUSSION
I
Right to Speedy Trial
The complaint charging defendant with burglary of a vehicle was filed October 23, 2002, but defendant was not arraigned until July 29, 2005, and an information was not filed until August 26, 2005. Defendant contends that this delay violated his state constitutional right to a speedy trial. We disagree.
Article I, section 15 of the California Constitution guarantees criminal defendants the right to a speedy trial. This right attaches upon the filing of a felony complaint. (People v. Martinez (2000) 22 Cal.4th 750, 754.) However, there is no presumption of prejudice arising from delay “after the filing of a complaint and before arrest or formal accusation by indictment or information [citation]; rather, in this situation, a defendant seeking dismissal must affirmatively demonstrate prejudice. (Id. at p. 755.)
A defendant has been prejudiced if the delay “has impaired the ability to defend against the charged crime because, for instance, a witness has become unavailable, evidence has disappeared, or the memory of a potential witness has faded.” (People v. Lowe (2007) 40 Cal.4th 937, 946.)
“The defense has the initial burden of showing prejudice from a delay in bringing a defendant to trial. Once the defense satisfies this burden, the prosecution must show justification for the delay. If the prosecution does that, the trial court must balance the prejudice to the defendant resulting from the delay against the prosecution’s justification for the delay.” (Lowe, supra, 40 Cal.4th at p. 942.) “Prejudice is a factual question to be determined by the trial court.” (People v. Hill (1984) 37 Cal.3d 491, 499.)
Defendant contends that, contrary to the trial court’s ruling, he established prejudice. Specifically, defendant asserts that the nearly three-year delay between the filing of the complaint and his arraignment meant that he lost access to the victim’s vehicle and could not inspect its physical condition to determine whether there was evidence of forced entry.
As discussed later in this opinion, we question whether evidence of forced entry was necessary in this case. However, setting that issue aside, we note that the trial court expressly rejected the claim defendant tenders on appeal. The burglary of the car occurred on October 8, 2002, and the complaint against defendant was filed two weeks later. The court commented that the car had not been seized as evidence and the victim had not been obliged to preserve the car in its burgled state. The court noted that there was a diagram showing the location of the fingerprints, and added that “the condition of the window would have changed, undoubtedly, from when the ID tech lifted the prints to, you know, weeks later. I’m certain. The window would have been rolled up. If it was broken, it would have been repaired. The car would have been washed.”
In denying defendant’s motion, the court reiterated “[t]here’s no requirement to preserve the vehicle. [¶] The prints are the issue in the case. The latent prints have been preserved. . . . [¶] That seems to me the critical issue in this case, so I don’t find . . . the vehicle unavailability to be prejudicial whatsoever.”
We agree with that assessment. Defendant cannot demonstrate prejudice because he cannot demonstrate that the condition of the car would have remained the same over any period of time. As the court suggested, the car’s window would have been rolled up during the ensuing weeks and the car could have been washed. The central issue in the case was the presence and placement of defendant’s fingerprints on the window of the car. The delay between the filing of the complaint and defendant’s arraignment did not affect this evidence.
The trial court properly ruled that defendant did not demonstrate prejudice, the requisite first step in establishing a violation of the right to speedy trial. There was no error.
II
Hearsay Evidence
At trial, the victim testified that “[t]o the best of [his] recollection,” he locked his car door when he parked his car in his driveway. He was sure that he left the passenger’s window slightly open, but he could not remember whether the window was rolled down two inches or four inches. He did not remember specifically locking his car that night, but said that after a previous theft incident, he and his wife “started locking [their] cars religiously.”
The victim also testified that he gave a statement to police investigators a few days after the incident. The victim said he told the truth to the officers on that date and did not make any changes to his statement after it was prepared. He had reviewed the statement that morning. When asked whether the statement was “correct to the best of your memory,” the victim replied affirmatively.
As the prosecutor began to ask the victim about what he told the officers, defendant objected, raising an unspecified hearsay objection. After an unreported discussion at the bench, the victim testified that he told the officers that “the door was locked, but the window was down a couple of inches.”
In later discussions over the admissibility of exhibits, defense counsel noted that she had objected to the admission of this evidence under the “past recollection recorded” hearsay exception of Evidence Code section 1237 because “not all of the foundational elements [had] been met for that particular exception.”
On appeal, defendant reiterates this claim, asserting that the statement was not properly authenticated and therefore inadmissible. We disagree.
Evidence Code section 1237, subdivision (a) provides: “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:
“(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’ memory;
“(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness’ statement at the time it was made;
“(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and
(4) Is offered after the writing is authenticated as an accurate record of the statement.”
Defendant asserts that these last two requirements were not met and there was therefore insufficient authentication to warrant admission of the victim’s statement. Defendant emphasizes that the victim testified that the statement was correct “to the best of [his] memory,” and argues that this is no more than the victim “vouching for his own veracity,” rather than proper authentication.
Defendant’s claim is predicated on an overly literal reading of the victim’s testimony. The victim unequivocally stated that he gave officers a statement a few days after the incident and told them the truth when he did so. He said he did not change anything in the statement. When asked whether it was correct “to the best of your memory,” the victim replied “That’s correct.” The clear import of the victim’s testimony was that he made a true statement to the police officers and that the writing accurately reflected that statement.
Contrary to defendant’s claim, a different conclusion is not compelled by People v. Simmons (1981) 123 Cal.App.3d 677 (Simmons), abrogated on other grounds in United States v. Owens (1988) 484 U.S. 554, 559 [98 L.Ed.2d 951, 957-958]. In Simmons, a witness made a statement to the police that incriminated defendant in the charged offense, but the witness later received a serious head injury and suffered amnesia. (Simmons, at p. 679.) The witness did not recall “any event recorded in his prior statement, nor even making it, or any circumstance surrounding its preparation. At best he [could] identify his signature affixed to the bottom of the transcription.” (Id. at p. 682.) The prosecutor asked the witness, “To the best of your knowledge and recollection, is that [written] statement true at this time?” The witness responded, “To the best of my knowledge.” (Id. at p. 683.)
The Court of Appeal concluded that this was inadequate authentication to warrant admission of the statement under Evidence Code section 1237. (Simmons, supra, 123 Cal.App.3d at pp. 682-683.) Given the extent of the witness’ memory loss, the response “to the best of my knowledge,” was of no evidentiary value in determining the truth of the witness’s statement. (Id. at p. 683.)
Here, however, there was no similar problem. The victim described events related to the offense, described making a statement to the police, remembered telling the police the truth, and attested to the accuracy of the recorded statement by stating that he had made no changes to it. Under these circumstances, the victim’s comment that the statement was correct “[t]o the best of [his] recollection” carried no questionable connotation. It simply reflected what can be said about any testimony: it was given to the best of the witness’s memory.
Defendant suggests that testimony from the police officers was also required to authenticate the victim’s statement as an accurate record of the victim’s testimony. No such testimony was needed. The victim himself said he gave a statement to the police, reviewed it, and made no changes to it, thereby authenticating the accuracy of the written statement.
The trial court acted well within its discretion in concluding that the victim’s statements to detectives were reliable and met the authentication requirements of Evidence Code section 1237. (See People v. Waidla (2000) 22 Cal.4th 690, 725.) There was no error.
III
Sufficiency of the Evidence
Section 459 defines burglary to include the entry into a vehicle “when the doors are locked . . . with intent to commit grand or petit larceny or any felony[.]” Citing People v. Woods (1980) 112 Cal.App.3d 226, 230 (Woods), defendant contends that there is insufficient evidence of a forced entry to support his conviction for violating this statute. We disagree.
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.)
Initially, we question whether evidence of forced entry is required. In Woods, the defendant stole items from a car by reaching through an open car window. (Woods, supra, 112 Cal.App.3d at p. 228.) The Court of Appeal concluded that when a car window is deliberately left open, section 459 “requires some evidence of forced entry before the prosecution’s burden of proof is satisfied.” (Woods, at p. 230.)
However, In re James B. (2003) 109 Cal.App.4th 862 limited Woods to its facts. The court analyzed section 459 at length and noted: “The common law element of breaking has never been an essential element of statutory burglary in California. [Citation.] Burglary from a vehicle is the lone exception, requiring that the doors of a vehicle be locked. [Citation.] Yet, ‘neither forced entry in the usual sense of the word nor use of burglar tools are elements of automobile burglary.’ [Citation.] The key element of auto burglary is that the doors be locked. In In re Charles G. [(1979) 95 Cal.App.3d 62], the court considered the vehicle locked based upon testimony that the owner’s habit was to lock his car, even though there were no signs of forced entry. [Citation.] In [People v. Burns (1952) 114 Cal.App.2d 566], on the other hand, there was evidence of forced entry (broken glass), but no evidence that the car had been locked; therefore there was no burglary. [Citation.]” (In re James B., at p. 868.)
The court noted that “‘because auto burglary can be committed only by entering a locked vehicle without the owner’s consent, it is only accomplished by altering the vehicle’s physical condition; at worst, by smashing a window, at best, by illegally unlocking it. These extremes, as well as other possible types of forcible entries, necessarily involve unlawfully altering the vehicle’s locked state.’” (In re James B., supra, 109 Cal.App.4th at p. 868.)
The court considered whether a car with locked doors and open windows should be deemed locked for purposes of section 459. (In re James B., supra, 109 Cal.App.4th at p. 869.) In the case before the court, the vehicle’s doors had been locked and windows left partially open for ventilation. (Id. at p. 870.) Nothing was in “grabbing distance” of the open window. (Ibid.) The minor had been able to reach through the opening and unlock the car door. (Ibid.) After reviewing other cases, the court concluded, “In this case, minor entered a locked vehicle without the owner’s consent by illegally unlocking it. [The owner] left windows open for ventilation, a reasonable thing to do. The doors were all locked. He did not, as in Woods, deliberately leave the window down far enough for someone to reach in and remove items without unlocking a door. The issue is not how far down the window was left, but whether the locked vehicle was entered by ‘illegally unlocking it [thereby] unlawfully altering the vehicle’s locked state.’ [Citation.] . . . ‘[F]or all intents and purposes the car in question was locked,’ and the elements of an auto burglary were met.” (Id. at p. 871.)
The same is true here. The victim testified that he habitually locked his car doors, and in his statement to the police officers a few days after the incident, he said that on this particular night he locked his car and left the passenger’s window open a few inches. The next morning, he discovered the passenger door left open and items taken. Unlike Woods, these items were not simply grabbed through an open window. The evidence establishes that the car was illegally unlocked and the elements of auto burglary were satisfied.
However, even if evidence of forced entry is required, and the jury was so instructed, the prosecution met its burden. The investigating officer found defendant’s fingerprints on the inside of the passenger’s window, with fingers pointing down. Defendant’s prints were also on the outside of the window. The officer thought that the window was off its track, although she was not absolutely certain “because it’s not documented.”
This evidence is sufficient to support the jury’s determination that defendant forced entry into the vehicle through the slightly opened window. Defendant’s claims to the contrary are unpersuasive.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., SIMS, J.