Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F1924
HULL, J.Based on the discovery of cocaine, cocaine base, firearms and ammunition during the search of a residence, defendant Robert Eugene Bennett was found guilty by a jury of numerous offenses, including possession of a short-barreled shotgun in violation of Penal Code section 12020, subdivision (a). (Unspecified section references that follow are to the Penal Code.) The jury found true an allegation that defendant was personally armed with a firearm in violation of section 12022, subdivision (c) during the commission of two of the offenses and the trial court found other sentence enhancement allegations true as well. The court sentenced defendant to state prison for a term of 15 years four months, including an upper term on the principal term and the enhancement thereto.
Defendant appeals, contending that (1) statements made by him were admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); (2) the jury was not instructed properly on the definition of a sawed-off shotgun (§ 12020, subd. (a)(1)); and (3) his sentence violated the holdings in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham). Rejecting each of these claims, we affirm the judgment.
Facts and Proceedings
Pursuant to a warrant, police officers conducted a search of a residence shortly after defendant left the residence in a car. Behind a false ceiling in the garage, an officer located two snack food containers holding nearly 240 grams of cocaine base and more than 7 grams of cocaine salt, a sawed-off shotgun with a 14-inch barrel wrapped in duct tape, and what appeared to be “pay/owe” sheets. Located in the same bag as the cocaine was a receipt for a money order made out to defendant and a shipping label bearing defendant’s name. In the kitchen, officers located ammunition, scales (including an electronic gram scale), and four boxes of baking soda (which can be used to turn cocaine salt into cocaine base).
The master bedroom appeared as if someone was using it, and it contained male hygiene products and clothing that appeared to be defendant’s size. A loaded nine-millimeter handgun and a loaded .38 caliber revolver were discovered in the room in a location that was readily accessible from the bed. Also located in the master bedroom was a large sum of money, two baggies containing white powder (one of which tested positive for cocaine base), a bag containing over 100 small plastic baggies, and paperwork that was consistent with pay-owe notations. An insurance card, receipts for the repair of one of defendant’s vehicles, a fax cover sheet, “slips” from a copy store, numerous receipts from a local veterinary office, and legal paperwork--all bearing defendant’s name--were located in the closet of the master bedroom. Defendant’s fingerprints were found on two of the empty baggies found in the master bedroom.
A second bedroom containing similarly sized clothing appeared to be used as a weight room, and a third bedroom containing female clothing did not appear to have been recently occupied. A photo album containing pictures of defendant was found in the living room area. A car in the garage and a van parked at the house were registered to defendant, as was the car he was driving when he was stopped by the police. Officers later located $10,000 in cash under the kitchen sink after listening to a tape of a telephone call from defendant to another individual.
An officer who was an expert on the possession of narcotics for sale testified that, based on his experience, the cocaine located in the residence was possessed for the purpose of selling it.
The police stopped defendant’s car shortly after he left the residence. After law enforcement officers gave him Miranda warnings, defendant admitted he had been “in and out of the residence for several months” and that he had handled several of the firearms there, although not the sawed-off shotgun. Defendant also said that several other people lived at the residence.
Two neighbors picked defendant out of a line-up as the individual who was living at the residence at the time of the search. One of these neighbors also identified defendant in court.
Defendant’s friend testified she had visited him in Los Angeles between six and 10 times and, to the best of her knowledge, he lived there. She thought defendant “stayed at [her] house for the most part” when he was in town.
Defendant’s former girlfriend testified that her brother and his acquaintance lived in the residence searched by the officers and that defendant had stayed there overnight on two occasions. According to the former girlfriend, she and defendant owned dogs, which her brother allowed them to keep at the residence for a period of time.
Discussion
I
The Miranda Claim
In Miranda, the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” (Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706].) A person subjected to custodial interrogation must be given warnings apprising the person that he has the right to remain silent, that any statement he makes can be used against him and that he has the right to retained or appointed counsel. (Id. at pp. 444-445 [16 L.Ed.2d at pp. 706-707].) A statement obtained in violation of Miranda is inadmissible to establish guilt. (People v. Sims (1993) 5 Cal.4th 405, 440.)
After defendant left the residence in his car, he was stopped and arrested on an unrelated warrant. Another officer arrived at the place of the stop and, prior to the time defendant was given his Miranda rights, the officer asked him if anyone else was at his residence. Defendant told the officer there was no one else at the house. The officer asked defendant if he had any animals at the residence, and defendant said he had dogs in the backyard. The officer asked defendant if he had keys to the residence. Defendant said he did, and gave the officer the keys. The officer gained access to the residence with the keys provided by defendant.
Defendant moved to suppress these statements based on the officer’s failure to read him his Miranda rights before questioning him. The People argued there was no Miranda violation because the officer’s questions were not designed to elicit an incriminating response. The trial court ruled that the statements were admissible because “the questions . . . were not meant to elicit admissions or other incriminating comments by . . . defendant,” as “everyone thought that that was his house.”
On appeal, defendant argues the trial court used an erroneous standard regarding what constitutes custodial interrogation when ruling on the admissibility of his statements. We find it unnecessary to reach this issue because we conclude that defendant was not prejudiced by the admission of these statements. (People v. Neal (2003) 31 Cal.4th 63, 68, 86; People v. Johnson (1993) 6 Cal.4th 1, 32-33; People v. Sims, supra, 5 Cal.4th at p. 447.)
The first statement made by defendant was that there was no one else at the residence. But defendant’s awareness of who was at the residence was explained by the fact that he had just left there. His response did not implicate him as a resident of the home to any greater degree than the officers’ observation of his departure already had.
Defendant’s next statement was that his dogs were in the backyard of the residence. This statement was cumulative of other evidence on this subject. One of the neighbors testified that she had spoken to defendant about “his dog . . . digging under the fence” and he had “got[ten] somebody to come and fix it.” Defendant’s former girlfriend testified that she and defendant kept their dogs at the residence. Numerous veterinary bills with defendant’s name on them were found in the master bedroom. Thus, there was ample evidence establishing that defendant’s dogs were at the residence independent of his statement to this effect.
Finally, the discovery that defendant had a key to the residence did not implicate Miranda (U.S. v. Patane (2004) 542 U.S. 630, 636-637 [159 L.Ed.2d 667, 674-675] (plur. opn. of Thomas J.); id. at p. 645 [159 L.Ed.2d at p. 680] (conc. opn. of Kennedy, J.) [physical evidence obtained through an uncoerced but non-Mirandized statement is admissible]), and defendant’s admission that he had the key was merely cumulative of this fact.
Moreover, there was an abundance of evidence tying defendant to the residence. Neighbors identified defendant as the person living there. Defendant himself admitted he had been “in and out of the residence for several months.” Legal paperwork, an insurance card, receipts and bills, all bearing defendant’s name, were located in the residence, as was a photo album containing pictures of him. Two vehicles at the residence, as well as the car defendant was driving when he left the residence, were registered to him. And it was defendant’s statements during a monitored telephone call that led to the discovery of a large sum of money hidden in the residence.
Defendant’s un-Mirandized statements were not mentioned during either party’s closing statement, thus underscoring the minimal significance the evidence had in establishing defendant’s connection to the contraband and related items located in the residence. Accordingly, any error in admitting defendant’s statements was harmless beyond a reasonable doubt.
II
Instructions Regarding the Shotgun
Defendant argues the trial court erred by failing to instruct the jury on the definition of a “sawed-off shotgun” and on the required mental state for possessing that type of weapon. We conclude defendant was not prejudiced by any deficiency in the trial court’s instruction.
Section 12020, subdivision (a)(1), makes it illegal to possess a short-barreled shotgun, which includes “[a] firearm which is designed or redesigned to fire a fixed shotgun shell and having a barrel or barrels of less than 18 inches in length.” (§ 12020, subd. (c)(1)(A).) The trial court instructed the jury that to prove possession of a sawed-off shotgun, the People were required to establish that “a person possessed a shotgun” and “the instrument or weapon was the kind commonly known as a sawed-off shotgun.” The jury was not instructed on the definition of a sawed-off shotgun or that it had to be proved defendant knew the weapon was unusually short.
Defendant asserts that because the term “sawed-off shotgun” is “specialized and refer[s] to a particular definition determined by the [L]egislature,” the trial court erred by not providing the jury with a definition of the term. (See People v. Griffin (2004) 33 Cal.4th 1015, 1022 [duty to define technical term with meaning peculiar to the law].) However, defendant cannot prevail on this claim “if ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’” (People v. Mayfield (1997) 14 Cal.4th 668, 774.) Here, the evidence was uncontroverted that the firearm in question--a sawed-off shotgun with a 14-inch barrel--was of the type proscribed by the statute. Under such circumstances, any error must be deemed harmless beyond a reasonable doubt.
Defendant also contends the trial court erred by failing to define the required mental state for possession of a sawed-off shotgun. Defendant cites People v. King (2006) 38 Cal.4th 617 (King) which held that, to secure a conviction for possession of a short-barreled firearm, the People “must prove the possessor’s knowledge of the weapon’s illegal characteristics” (id. at p. 620) and the jury must be instructed on this element of the offense.
But defendant fails to note other portions of the court’s holding, which state that the prosecution “must prove that a defendant charged with possession of a short-barreled [firearm] knew the [firearm] was unusually short, but the defendant need not know the [firearm’s] actual dimensions” (King, supra, 38 Cal.4th at p. 627) and that “[a] person possessing a short-barreled [firearm], and having actually observed the weapon, necessarily knows of its shortness, and thus knows its illegal characteristic, whether or not the person knows how many inches long the weapon is.” (Id. at pp. 627-628.) In King, the court found the instructional error in failing to tell the jury that the prosecution had to prove the possessor’s knowledge of the weapon’s illegal characteristics “was harmless under any standard” because, once the defendant saw the weapon, he was necessarily aware of its shortness. (Id. at p. 628.)
The weapon at issue here was a sawed-off shotgun with a 14-inch barrel (a barrel a full 4 inches shorter than the minimum) wrapped in duct tape, hidden in the same location as a bag containing a substantial amount of cocaine base and a money order receipt made out to defendant. The jury’s verdicts reflect a determination that defendant possessed the sawed-off shotgun and the cocaine base hidden in the same location. There is no evidence in the record on which the jurors, had they been instructed on the requisite mental state, might have concluded that defendant possessed the sawed-off shotgun without ever having observed it. And, having observed the weapon, defendant was necessarily aware of its shortness. Thus, as in King, the error here must be deemed harmless.
III
Blakely/Cunningham Error
Defendant claims that imposition of an upper term sentence violated his right to a jury trial as set forth in Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. Briefing on this issue was completed before the California Supreme Court’s opinions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. In light of Black II, defendant’s claim fails.
Initially, we reject the People’s contention that defendant has forfeited his claim by failing to object on this basis in the trial court. “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) At the time of defendant’s sentencing, People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I), later vacated sub nom. Black v. California (2007) 549 U.S. ___ [167 L.Ed.2d 36], had upheld the California sentencing scheme under Blakely, and Cunningham had yet to be decided. As Black I was still binding precedent at the time of defendant’s sentencing, an objection based on Blakely would have been futile and, consequently, was not required to preserve the issue. (People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
We turn to the merits of defendant’s claim. In Blakely, the United States Supreme Court held that any circumstance “‘[o]ther than the fact of a prior conviction’” (Blakely, supra, 542 U.S. at p. 301 [159 L.Ed.2d at p. 412]) that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried before a jury and proved beyond a reasonable doubt. (Id. at pp. 301, 303 [159 L.Ed.2d at pp. 412, 413.) In Cunningham, the United States Supreme Court rejected the California Supreme Court’s holding in Black I that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law” does not violate Blakely. (Black I, supra, 35 Cal.4th at p. 1244.) The court in Cunningham concluded that the middle term is the statutory maximum under California’s determinate sentencing scheme absent proper proof of other factors. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876].)
However, in Black II, decided subsequent to Cunningham, the California Supreme Court held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) This is so because “[u]nder California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make [a] defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.) The court also held that the exception to the requirement for a jury trial for “‘the fact of a prior conviction’” (Blakely, supra, 542 U.S. at p. 301 [159 L.Ed.2d at p. 412])“include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions,” such as whether those convictions are numerous or of increasing seriousness. (Black II, supra, 41 Cal.4th at p. 819.)
The probation report prepared for defendant’s sentencing here sets forth numerous circumstances in aggravation, including defendant’s prior record and the fact that he had served a prior prison term. Defendant’s record included two misdemeanor convictions and three prior felony convictions. Two of defendant’s convictions involved weapons and two involved drugs, and defendant had been sentenced to state prison for one of the controlled substance offenses.
At sentencing, the trial court stated that it was “going to follow the report” and that “most of the reasoning [wa]s in the body of the report.” Although the court did not specify factors in aggravation of the sentence, defendant did not object to the court’s failure to do so, thereby forfeiting any claim of error on this basis. (See People v. Scott (1994) 9 Cal.4th 331, 348, 354.) Nor does defendant allege his trial attorney rendered ineffective assistance of counsel on this basis.
In any event, the trial court’s comments at sentencing demonstrate that it was imposing the upper term based on the reasons set forth in the probation report, which included factors that the court properly could consider without a jury finding. Accordingly, imposition of the upper term was not error.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P.J., BLEASE, J.