Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF115499. Gary T. Friedman, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Asa Neal Goodie (appellant) was found guilty of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). Appellant admitted the prior conviction element of the alleged offense. In a bifurcated proceeding, the trial court found true that appellant had a prior strike conviction (§ 667, subds. (b)-(i)) and had served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced appellant to an aggregate term of eight years in prison: the upper term of three years, doubled pursuant to the three strikes law, plus 2 one-year prison term enhancements. The court imposed various fees and fines.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, appellant contends: (1) there is insufficient evidence to uphold his conviction; (2) the trial court erred when it denied his new trial motion; (3) the trial court erred when it allowed evidence of appellant’s character; (4) the trial court erred when it allowed an exhibit into evidence; (5) he was deprived of his right to confrontation and due process; (6) the trial court erred when it denied his request for a pinpoint instruction; (7) there was cumulative error; (8) he received ineffective assistance of counsel at sentencing; and (9) Cunningham (Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]) error occurred. We disagree and affirm.
FACTS
On February 16, 2006, Parole Agent Sean Lozano observed Margarita Aguilar exit apartment F in an apartment complex in Bakersfield. Lozano also saw appellant walk out of the apartment complex area, but did not see if appellant exited any particular apartment unit. Police Officer Marcela Garcia arrived to assist in a search of apartment F. When Garcia arrived, Aguilar was standing on the curb outside the complex.
Aguilar was tried with appellant, but is not a party to this appeal.
The officers entered the apartment to conduct a parole search. There were no people present in the one-bedroom apartment. There was one bed in the bedroom, and both male and female clothing strewn about along with papers and personal items.
On top of an end table in the bedroom were a computer and a Kel-Tec .32-caliber handgun in plain view. The handgun was loaded with ammunition in a clip and a live round in the firing chamber. A wallet under the table contained appellant’s identification card. No other identification cards were found in the wallet or the apartment. Drug paraphernalia and a scale consistent with drug sale use were also found in the bedroom.
The identification card showed an address on 19th Street, apartment C, which appellant provided Parole Officer Charles Moore as his residential address. Moore last saw appellant on September 1, 2005, and had been unable to make contact with appellant at that address on September 5, 12, and 15, 2005. Appellant’s subsequent parole officer, Nancy Kolb, had no current address for appellant, and he was considered a parolee at large as of February 10, 2006.
Officer Garcia found a billing statement from Cox Communications addressed to appellant at the apartment F address in a kitchen drawer. The bill was dated January 18, 2006, and had a due date of February 13, 2006. A current Pacific Gas and Electric bill addressed to a Jacoby Jones also was found.
Aguilar told Agent Lozano that she lived in apartment F. Aguilar told Officer Garcia that she had lived in that apartment for three to four months, but it was her brother, Dennis Belmonte, who was on the rental agreement, although he did not stay there often.
Officer Garcia testified that a man named Shandrell Epps had been located near the apartment carrying $1,300 in cash, a large number of Ecstasy pills, and keys to apartment F. When Garcia asked Aguilar if Epps was supposed to have a key to the apartment, Aguilar said he was not. No keys to apartment F were found on either Aguilar or appellant.
Officer Garcia spoke to Denyse Ahrens, the owner of the apartment building. She took over as manager of the apartments in January of 2006. Ahrens expressed concern about testifying because she was warned of possible repercussions if she did. She testified that she had known appellant since he was in grade school, and she was familiar with Aguilar as one of the people appellant associated with. Ahrens had seen Aguilar around the apartment building.
Ahrens stated that it was Dennis Belmonte who rented the apartment and that he “stayed there.” She did not know everyone who regularly stayed at the apartment, but thought that Aguilar had been living there for four to six months. Ahrens assumed Aguilar lived there because she had seen her coming out of the apartment in a house robe and slippers. Ahrens thought appellant stayed in the apartment two to three days a week, but he wasn’t there all of the time. Appellant paid the $350 rent on several occasions, but since the tenants in the various units knew each other well and passed rent to one another to give to her, Ahrens was not sure whether appellant had provided the rent money or whether he was just passing it along to her from someone else.
Officer Garcia testified that Ahrens told her appellant had paid the rent several times in cash, and, at the time she spoke to Ahrens, she did not qualify the statement as she did at trial.
DISCUSSION
1. Is there sufficient evidence to support appellant’s conviction as a felon in possession of a firearm?
Appellant challenges the sufficiency of the evidence supporting his conviction of being a felon in possession of a firearm. As argued by appellant, there is insufficient evidence to find that he had actual or constructive possession of the firearm. We disagree.
In determining whether the evidence is sufficient to support the jury’s findings, “‘“the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’” (People v. Welch (1999) 20 Cal.4th 701, 758; see People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, including reasonable inferences based on the evidence and excluding inferences based on speculation and conjecture. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.)
Appellant was charged with possession of a firearm by a felon in violation of section 12021, subdivision (a)(1).
“Section 12021 does not require any specific criminal intent; general intent to commit the proscribed act is sufficient. [Citation.] The act proscribed by section 12021 is possession of a firearm by a convicted felon. [Citation.] Possession may be either actual or constructive as long [as] it is intentional. [Citation.]” (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.)
Actual possession requires that the weapon be in the immediate possession or control of a person. An individual has constructive possession “when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others.” (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.) “‘Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control’ [citation] or which is subject to the joint dominion and control of the accused and another [citations].” (People v. Francis (1969) 71 Cal.2d 66, 71.)
Sufficient circumstantial evidence exists from which the jury could find that appellant had possession of the weapon found in the bedroom of the apartment. Appellant was seen coming out of the apartment complex where apartment F was located. Ahrens testified that appellant stayed at the apartment two to three days a week and paid the rent on several occasions. Officer Garcia discovered appellant’s wallet in the only bedroom of the apartment, directly beneath the table where the handgun was found. Garcia also found a current bill addressed to appellant at that apartment in a drawer in the kitchen.
Appellant points to evidence that, if believed by the jury, might have led to a different verdict. This consisted of testimony that there was a current PG&E billing statement in the apartment addressed to a Jacoby Jones, and that Shandrell Epps was arrested outside the apartment building with a key to apartment F in his possession and a large amount of drugs and cash. But, such evidence is immaterial in light of the standard of review of this court. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Therefore, the evidence is sufficient to uphold the conviction.
2. Did the trial court err when it denied the new trial motion?
Appellant contends the trial court abused its discretion when it denied his new trial motion based on prosecutorial misconduct. We disagree.
In order to place appellant’s argument in context, we first review the record. Prior to trial, appellant stipulated to a prior felony for purposes of the alleged violation of section 12021, subdivision (a)(1), and he asked that the prior strike and prison time allegations be bifurcated. The court then noted that many of the prosecution’s witnesses were parole agents and that revealing their occupation during voir dire might be a “red flag,” although the court noted that appellant had admitted his prior felony status. Defense counsel argued that the witnesses should be referred to solely by their names, without reference to their employment status. The prosecutor disagreed, stating that these witnesses were the ones who made the search and contacted people at the scene, and when they took the stand they would need to identify themselves as parole agents. The prosecutor also noted that two of the parole agents were at one point assigned to appellant and were necessary to rebut the anticipated defense. Defense counsel asked that they not be identified as assigned to appellant, but simply identified as state parole agents until they testified. Defense counsel also argued that he did not think it was necessary to identify the witnesses on a witness list by their occupation, since the witness list was only to ask the jurors whether they recognized a person. Defense counsel then suggested identifying each of them as a “state employee,” and the trial court agreed.
Defense counsel made an in limine motion asking that all statements by codefendant Aguilar to the officers relating to appellant and apartment F be excluded. The prosecutor agreed that Aguilar’s statements implicated appellant and would raise an Aranda issue unless Aguilar testified. The court ordered the prosecutor to so admonish his witnesses.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda).
Defense counsel then asked that “all evidence relating to observations and contact with [appellant] prior to and including his arrest” be excluded as he was not challenging the stop, detention, and arrest. The People joined in the motion, stating that they had submitted a similar motion in limine which “basically asks the same finding.” That motion stated, inter alia:
“The People request a stipulation by the defense as to the following: [¶] The car stop, contact and detention of [appellant] and [] Aguilar in this case with law enforcement and the subsequent search of [appellant]’s person and apartment located at … Apt. #F, were lawful. Therefore, these issues are not for the jury’s consideration in deciding whether [appellant] has been proven guilty of the charged crime.”
The trial court granted the request.
At trial, Parole Agent Lozano identified himself as “employed with California Department of Corrections & Rehabilitation as a parole agent, assigned to a fugitive apprehension team.” The following colloquy then occurred between the prosecutor and Lozano:
“Q. What is a fugitive apprehension team?
“A. Our objective is to seek out parolees at large, those who have absconded their parole supervision, and also concentrate on parolees who are currently facing new criminal charges.
“Q. What does it mean to be a parolee at large?
“A. A parolee at large is basically once they are released from prison, they are mandated to check in with the parole agents for supervision. Once they no longer keep in contact with the parole agent, either move residences without informing them or get involved in other criminal activity, a warrant is issued and they become at large.
“Q. And then they are assigned to your case load?
“A. Yes.
“Q. And did you have a case load in this job back on February 16th, 2006?
“A. Yes, I did.
“Q. And on that day did you come into contact with any individuals that were part of your case load?”
At this point, defense counsel objected, a sidebar occurred, and questioning continued.
“Q. “… You saw somebody—you came into contact with somebody that was part of your case load back on February 16th of 2006, correct?
“A. Yes, I did.
“Q. Do you see that person that you contacted that was part of your case load on February 16, 2006, in court today?
“[Defense Counsel]: I would have to object based on our prior stipulation for the record.
“The Court: Objection overruled.
“A. Yes, I do, [appellant] wearing a striped shirt .…”
After Agent Lozano’s testimony, the following discussion took place between the court and counsel:
“[Defense Counsel]: So I understand it, when Officer Lozano testified that he saw [appellant] exit the complex, I just want to make sure the objection was on the record that we objected to that testimony because of our stipulation and … in limine motion that was granted by your Honor regarding observations and contact with [appellant] prior to his arrest, which was not allowed, just as long as we have a record of that.
“The Court: My understanding was that what you were talking about was prior to his arrest. I didn’t know the facts of the case.
“[Defense Counsel]: Right.
“The Court: I thought what you were talking about is when he was convicted of a felony and he was under the supervision of parole officers, they couldn’t get into what—those types of transactions. But when they see him physically at the scene of the alleged crime, that to me is contemporaneous with his arrest, totally different.
“[Defense Counsel]: I guess to narrow the issue down is we didn’t challenge his contact, detention, and arrest based on the stipulation that no testimony prior to that time was allowed. [¶] Lozano testified that he saw [appellant] exit the apartment and that was before he was even contacted … and arrested. That was my issue.”
The court clarified, and defense counsel agreed, that he meant to say “complex” instead of “apartment.”
The prosecutor responded:
“Your Honor, just so we have a clear record, it’s my position that that was appropriately ruled upon by your Honor and allowed to be testified to because of the questioning during cross-examination of previous witnesses that has attempted to separate [appellant] from that location. Accordingly, I think it was appropriate to allow it .…”
The court agreed, and noted, “That was taken into consideration, as well.”
Following the verdict, appellant filed a new trial motion, arguing, in part, that the questions asked of Agent Lozano by the prosecutor constituted prosecutorial misconduct. The People filed an opposition to the motion, arguing that eliciting testimony from the parole agent regarding appellant’s parole status did not violate any of the stipulations entered into by the parties or any orders of the court.
At the subsequent hearing, the trial court denied the new trial motion, stating:
“… I did have an opportunity to review my notes, conducted an independent review of the evidence, my notes, read over the witness statements I took down, and from that independent review I find that [appellant] did, in fact, receive a fair trial on the merits. The verdict is supported by substantial evidence. Find no error of law or questions of law. Find that the verdict is not contradictory to the law or the evidence. Find that there was no prosecutorial misconduct. Based on the above findings, deny the motion for new trial.”
Appellant now contends the trial court erred in denying his motion for new trial, because prosecutorial misconduct occurred.
Section 1181, subdivision 5 provides that a trial court may grant a new trial “when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury .…”
“[W]e review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged. In turn, ‘“[t]he applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s … intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citation.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.] …”’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841; see also People v. Hill (1998) 17 Cal.4th 800, 820.) There are exceptions to the general rule of forfeiture.
“A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, a failure to request the jury be admonished does not forfeit the issue for appeal if ‘“an admonition would not have cured the harm caused by the misconduct.”’ [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ [Citations.]” (People v. Hill, supra, at pp. 820-821.)
We note, at the outset, that defense counsel objected to the prosecutor’s questioning of Agent Lozano: once without grounds and once “based on our prior stipulation for the record.” Arguably, because defense counsel did not object to the prosecutor’s questioning on grounds of misconduct and he did not request an admonition, appellant has not preserved the issue for review on appeal. (People v. Frye (1998) 18 Cal.4th 894, 969 [“to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm”]; People v. Hill, supra, 17 Cal.4th at p. 820.) Subsequent arguments of prosecutorial misconduct in a motion for new trial do not substitute for a timely objection. (People v. Williams (1997) 16 Cal.4th 153, 254.)
But even if the issue was not forfeited, the trial court did not abuse its discretion in denying the new trial motion based on prosecutorial misconduct. During cross-examination of Officer Garcia, defense counsel established that the address on appellant’s identification card found near the firearm was not the address of the apartment where the search occurred. The prosecutor’s subsequent questioning of Agent Lozano about appellant’s parole status was relevant because the defense had placed the location of appellant’s residence at issue. Agent Lozano testified that a parolee at large can be one who moves residences without informing parole about the move. And, along these same lines, Agent Moore later testified that he had attempted to contact appellant at the address on the identification card, but was unable to do so, implying that he no longer lived there. We do not see this as prosecutorial misconduct, nor outside the bounds of the parties’ agreed-upon stipulation to exclude “all evidence relating to observations and contact with [appellant] prior to and including his arrest.” Moreover, “even otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, do not constitute misconduct.” (People v. McDaniel (1976) 16 Cal.3d 156, 177.)
Furthermore, because the jury was informed by the parties’ stipulation that appellant had previously been convicted of a felony, we do not see Agent Lozano’s reference to being on the “fugitive apprehension team,” and appellant being part of his “case load,” as prejudicial.
In sum, because there was no prosecutorial misconduct, and even if there was, because it was not prejudicial, the trial court did not abuse its discretion in denying appellant’s motion for new trial.
3. Did the trial court err in allowing evidence that appellant was considered a “high control” parolee not in contact with his parole officer?
Appellant contends the trial court erred when it allowed improper and prejudicial rebuttal evidence. Specifically, appellant argues that the trial court erred when it allowed testimony that he was considered a “high control” parolee not in contact with his parole officer. We disagree.
Again, we put appellant’s argument in context. At trial, Officer Garcia testified for the prosecution that she found a firearm on a table in apartment F, and that appellant’s wallet with his identification card was found underneath the table. On cross-examination, Officer Garcia testified that the address on the identification card was for an apartment C on 19th Street. Later, the prosecutor argued to the court that because appellant had called attention to the fact that the address on the identification card was not the address at the apartment, the prosecutor should be allowed to establish, by testimony of appellant’s former parole agent, that the address on the identification card was the address given by appellant as his residence, but that he was not actually living there. Defense counsel objected on grounds of lack of prior discovery of this information and that the proposed testimony was remote and confusing. The prosecutor noted that the proposed witnesses, Parole Agents Charlie Moore and Nancy Pedroza (who testified as Nancy Kolb), had always been on the witness list. The trial court overruled defense counsel’s objection.
Parole Agent Charles Moore then testified that he was assigned to supervise appellant, who was a parolee. When the prosecutor asked whether, “as part of your case load is it important that your parolees, like [appellant], provide you with current contact information, including a place of residence?” Moore replied, “Absolutely. [Appellant’s] a high-control person. High-controls have to be seen twice a month. So that’s very important that we have—” Defense counsel then objected on grounds of relevance and moved to strike. The trial court overruled the objection and denied the motion to strike. Moore then testified that appellant had provided him an address on 19th Street, but he was unable to contact him there.
We note at the outset that appellant’s characterization of Agent Moore’s testimony as “rebuttal” evidence is incorrect. Agent Moore testified in the prosecution’s case-in-chief. As set forth in section 1093, a trial shall proceed in the following order: The prosecution presents its case-in-chief, the defense presents its case, and the parties “may then respectively offer rebutting testimony only, unless the court, for good cause, in furtherance of justice, permit them to offer evidence upon their original case.” (Id., subds. (c), (d).) Our Supreme Court has summarized the rules regarding proper rebuttal evidence as follows:
“‘If evidence is directly probative of the crimes charged and can be introduced at the time of the case in chief, it should be.’ [Citation.] ‘[P]roper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.’ [Citation.] [¶] The reasons for the restrictions on rebuttal evidence are ‘to (1) ensure the orderly presentation of evidence so that the trier of fact is not confused; (2) to prevent the prosecution from “unduly magnifying certain evidence by dramatically introducing it late in the trial;” and (3) to avoid “unfair surprise” to the defendant from sudden confrontation with an additional piece of crucial evidence.’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 761.)
Here, Agent Moore’s testimony was introduced during the prosecution’s case-in-chief, thereby avoiding the concerns associated with the introduction of evidence during rebuttal.
Appellant also argues that the court prejudicially erred by admitting Agent Moore’s characterization of him as a “high-control person,” because “character evidence in the form of specific instances of wrongful conduct is inadmissible to prove the defendant’s conduct on the instance of the charged offense by the provisions of Evidence Code section 1101, subdivision (a),” except when it is offered to prove some material fact other than a character trait and its relevance is substantial. But we note that appellant objected to Agent Moore’s characterization of him as a “high-control person” on grounds of relevance only.
In the absence of a timely and specific objection on the ground urged on appeal, the trial court’s rulings on admissibility of evidence will not be reviewed. (Evid. Code, § 353; People v. Clark (1992) 3 Cal.4th 41, 125-126.) If a party seeks to exclude evidence on grounds that it is inadmissible character evidence, a general relevancy objection will normally not suffice. Rather, the objection “‘must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.’ [Citation.]” (People v. Clark, supra, at p. 126 [finding waiver of objection to evidence of prior conduct proffered under Evid. Code, § 1101, subd. (b)].)
Here, the objection did not alert the court that the defense believed that the evidence was inadmissible character evidence. The objection was expressly limited to relevance, and defense counsel did not amplify his objection or explain its basis.
Even if the objection had been sufficient to preserve the issue for appeal, any error in overruling the objection would have been harmless. Errors in the admission of evidence are reviewed under the miscarriage of justice standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836, i.e., that the error is reversible only if it is reasonably probable that an outcome more favorable to the defendant would have resulted in the absence of the error. (People v. Carrillo (2004) 119 Cal.App.4th 94, 103, citing People v. Cooper (1991) 53 Cal.3d 771, 836.)
Agent Moore’s brief reference to appellant as a “high-control person” with whom he needed to make contact twice a month did not unduly prejudice appellant. The jury was informed of the parties’ stipulation that appellant previously had been convicted of a felony. With that information, it was reasonable for the jurors to assume that appellant had been on parole or probation and was required, at some point, to keep in contact with his probation or parole officer. It is not reasonably probable that, but for Agent Moore’s reference, appellant would have received a more favorable outcome.
4. Did the trial court err when it admitted a cable bill addressed to appellant?
Appellant contends the trial court erred when it admitted People’s exhibit 5—the cable bill addressed to appellant at the 20th Street, apartment F address—without sufficient foundation. We disagree.
At trial, Officer Garcia testified that she found, in a kitchen drawer, a billing statement from Cox Communications addressed to appellant. The bill was dated January 18, 2006, and had a due date of February 13, 2006. At the end of the day, the prosecutor moved to admit “the Cox Cable invoice, item number five, into evidence at this time.” Defense counsel objected “based on foundation,” but the trial court overruled the objection.
Appellant now claims the trial court abused its discretion in admitting the cable bill into evidence because “no foundation was laid for allowing this item into evidence under any exception to the hearsay rule .…” We disagree.
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) “An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute. [Citations.]” (People v. Turner (1994) 8 Cal.4th 137, 189, abrogated on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
In In re Leanna W. (2004) 120 Cal.App.4th 735, the court found that “[a]n invoice is hearsay, and it is not admissible to prove that the specific work or service appearing on the invoice was actually performed absent a foundational showing of an exception to the hearsay rule.” (Id. at p. 743.) In Leanna, the juvenile was charged with first degree burglary, vandalism, and grand theft when she entered her grandmother’s house in her absence and hosted a party. The prosecution alleged “‘utilities were used,’” and a witness read from a Direct TV invoice to demonstrate that someone had ordered a boxing match and six adult movies while the grandmother was away. (Id. at pp. 737-738, 743.)
But here, despite appellant’s claim to the contrary, the cable bill was not offered “to prove the truth of the matter asserted, i.e., that appellant was a subscriber to television and Internet service for Apartment F, where the firearm was found in the bedroom on a table with a computer.” Instead, the cable bill was offered for the nonhearsay purpose as circumstantial evidence of appellant’s dominion and control over apartment F.
In People v. Goodall (1982) 131 Cal.App.3d 129, the defendant was charged with possession, manufacture and sale of various drugs. (Id. at p. 136.) Found in the house were an unsigned lease and rent receipt, bearing the defendant’s name; a receipt from a moving company addressed to the residence and signed by the defendant; an unlawful detainer summons addressed to the defendant; a driver’s license in the defendant’s maiden name; and a number of photographs of the defendant and her family. (Id. at pp. 139-140.) The trial court admitted these items into evidence. On appeal, the defendant claimed these items were inadmissible hearsay documents. (Id. at p. 143.) The appellate court disagreed:
“Without considering the documents for the truth of the matter stated therein, it is relevant that documents bearing [the defendant’s] name or other items reasonably identifiable as [the defendant’s] were found at the residence.… The jury could infer that these items would not have been so located unless [the defendant] had either some dominion and control over the residence or a presence sufficient to give her an awareness of what was going on .…” (Ibid.)
Similarly, in People v. Williams (1992) 3 Cal.App.4th 1535, the court determined that documentary evidence was admissible to prove residence or occupancy. In Williams, the defendant pled guilty to possession of cocaine for sale after his motion to suppress evidence was denied. (Id. at p. 1537.) Search of an apartment revealed not only the drugs but also various documents bearing the defendant’s name. The defendant moved to suppress the evidence, claiming the information in the affidavit was too stale to establish probable cause. (Id. at p. 1538.) At the hearing on the motion, the court asked the defendant to address the issue of standing to contest the search. The defendant called one of the officers who executed the search warrant, and he testified that he had discovered several documents bearing the defendant’s name in the bedroom of the apartment. At that point, the People objected on the ground that the documents were irrelevant to the issue of standing. The trial court characterized the documents as hearsay, and sustained the objection. (Id. at p. 1539.) The trial court subsequently denied the suppression motion on the ground that the defendant failed to show he had standing to contest the search. (Id. at p. 1540.)
The court in Williams disagreed with the trial court’s characterization of the documents as inadmissible hearsay.
“Like a utility bill, the fishing license and two checks at issue here are more likely to be found in the residence of the person named on those documents than in the residence of any other person. Accordingly, regardless of the truth of any express or implied statement contained in those documents, they are circumstantial evidence that a person with the same name as the defendant resided in the apartment from which they were seized. Therefore, when introduced for the purpose of showing residency, they are admissible nonhearsay evidence.” (People v. Williams, supra, 3 Cal.App.4th at pp. 1542-1543.)
Here, the trial court properly admitted the cable invoice for the nonhearsay purpose of showing that appellant resided in apartment F.
5. Did the trial court err when it admitted Officer Garcia’s explanation as to why she did not conduct additional investigation?
Appellant contends the trial court deprived him of his right to confrontation and due process when it denied his motion to strike Officer Garcia’s statement explaining why she did not conduct certain additional investigation. We disagree.
The record shows the following. Prior to trial, the parties agreed that statements made by codefendant Aguilar be excluded, to avoid Aranda issues, unless Aguilar testified. During cross-examination of Officer Garcia, defense counsel asked the officer if she had contacted Dennis Belmonte, the person who Aguilar claimed had rented the apartment, “regarding his relationship to the gun.” Officer Garcia stated that she had not. When asked whether “the person who rented the apartment should be questioned about whether or not he has a gun in that apartment? Do you think that’s relevant?” Officer Garcia stated, “No. [Aguilar] had already told me who the gun belonged to.”
The following then occurred:
“[Defense Counsel]: I would move to strike that testimony. There was no question posed and it’s nonresponsive.
“[Prosecutor]: I would disagree with that. There was a question posed and it did respond directly to that question.
“The Court: I want to see counsel at sidebar, please, briefly.
“(A conference was held at sidebar which was not reported.)
“The Court: Returning to open court with all counsel. [¶] You may proceed, sir.”
The following morning, out of the presence of the jury, the prosecutor brought up the cross-examination of Officer Garcia:
“[Defense counsel] specifically asked questions about did you interview particular individuals, including Shandrell Epps, including Dennis Belmonte. There was mention of a Jacoby Jones. There was mention of a Derrick Prior. All of these people that were asked about had to do with whether or not there was an investigation about their connection to the apartment and/or the gun. [¶] Your Honor, I believe that that misleads the jury that Officer Garcia conducted an incomplete or not thorough investigation in that the context and the nature of her investigation was framed, basically, by what she investigated personally when she searched Apartment F, but also by the statement she had obtained from Ms. Aguilar that have been redacted, in part, in this trial pursuant to a motion by [defense counsel].”
The prosecutor argued that defense counsel’s questioning of Officer Garcia opened the door to introduce Aguilar’s statement to Officer Garcia that Aguilar had seen appellant earlier that morning with the gun, and that Garcia believed the gun belonged to appellant. According to the prosecutor, defense counsel, through his cross-examination, was implying that Officer Garcia’s investigation was incomplete and untrustworthy.
After further research and discussion, in which defense counsel voiced opposition to giving a limiting instruction of Officer Garcia’s statement, the trial court ruled as follows:
“The problem that I see here is that to the extent the defense, [appellant’s] defense, has raised an issue as to the scope of the officer’s investigation, i.e., her thoroughness of investigation and whether she asked a particular witness a certain statement, she responded—her response I am not going to strike. I think it was invited and it was requested and she so responded. [¶] But other than that, there’s no way in which I can see we can avoid a violation of Aranda/Bruton. We cannot redact.”
Bruton v. United States (1968) 391 U.S. 123 (Bruton).
Appellant now claims the trial court’s failure to strike Officer Garcia’s statement violates Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and the Aranda/Bruton rule. We find no prejudicial error.
The Sixth Amendment confrontation cause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) The phrase “witnesses against him” is not limited to in-court witnesses, but also applies to admission of hearsay statements. (See Crawford, supra, 541 U.S. at pp. 50-51.)
In Crawford, the United States Supreme Court overruled Ohio v. Roberts (1980) 448 U.S. 56, which had allowed out-of-court statements to be admitted at trial upon a showing of sufficient indicia of reliability. (Crawford, supra, 541 U.S. at pp. 59-68.) The Supreme Court concluded that testimonial evidence, such as prior testimony at a preliminary hearing, before a grand jury, or at a former trial, as well as statements made during a police interrogation, requires that the declarant be subject to confrontation. (Ibid.) Crawford did not define “police interrogation,” but the case of Davis v. Washington (2006) 547 U.S. 813 determined, inter alia, that statements elicited by responding officers at a crime scene may be testimonial if no emergency is in progress and the purpose of the questioning is to elicit information concerning possibly criminal past conduct. (Davis v. Washington, supra, at p. 832.)
In Aranda, dealing with out-of-court statements by co defendants, the California Supreme Court rejected the notion that the admission of a non testifying defendant’s confession inculpating a codefendant is rendered harmless to the non confessing defendant by an instruction that it should not be considered against him or her. (Aranda, supra, 63 Cal.2d at p. 526.) In Bruton, decided just a few years after Aranda, the United States Supreme Court held that introduction of an incriminating extra judicial statement by a non testifying codefendant violates the defendant’s right to cross-examination, even if the jury is instructed to disregard the statement in determining the defendant’s guilt or innocence. (Bruton, supra, 391 U.S. at p. 137.) The Supreme Court reasoned that, even when so instructed, jurors cannot be expected to ignore the statements of one defendant that are “powerfully incriminating” as to another defendant. (Id. at pp. 135-136.)
The scope of Bruton was subsequently limited when the high court in Richardson v. Marsh (1987) 481 U.S. 200 held that “the Confrontation Clause is not violated by the admission of a non testifying co defendant's confession with a proper limiting instruction when … the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Id. at p. 211.) In such circumstances, the court’s instruction to restrict consideration of the non testifying defendant’s statement to his or her own case is deemed sufficient protection. (Id. at p. 208.) “While Bruton required that the admission be ‘powerfully’ incriminating, Richardson required that it also be ‘incriminating on its face .…’” (People v. Archer (2000) 82 Cal.App.4th 1380, 1386.)
Here, we need not and thus do not decide the question whether Crawford or Aranda/Bruton error occurred. Even assuming arguendo that Officer Garcia’s statement should have been stricken, we conclude that the admission of the statement did not so prejudice appellant that his conviction must be reversed. The admission of an extra judicial statement in violation of Crawford and a defendant’s rights under the confrontation clause is subject to the harmless error analysis of Chapman v. California (1967) 386 U.S. 18. (People v. Harrison (2005) 35 Cal.4th 208, 239.) In addition, “it is established … that Bruton-Aranda error is not prejudicial per se,” but rather, “such error must be scrutinized under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California.” (People v. Anderson (1987) 43 Cal.3d 1104, 1128.) “[I]f the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.” (Id. at p. 1129.)
The other evidence against appellant was sufficiently strong to render any error harmless. There was evidence that appellant stayed at apartment F at least two or three days a week. He had paid rent on the apartment on several occasions. The firearm was found on a table in the bedroom of the apartment, and appellant’s identification card was found in a wallet beneath the table. A cable bill in a kitchen drawer of the apartment had appellant’s name and the address on 20th Street on it. Officer Garcia’s statement, if it can be inferred to implicate appellant, was a “minor corroboration of strong, independent evidence” that appellant possessed the handgun. (People v. Jacobs (1987) 195 Cal.App.3d 1636, 1654.) Any error in admitting Officer Garcia’s statement was harmless beyond a reasonable doubt.
6. Did the trial court err when it refused appellant’s request for a pinpoint instruction?
Appellant contends the trial court prejudicially erred when it denied his request for an instruction that “pinpointed” the defense theory. We disagree.
During a jury instruction conference, defense counsel asked that the court modify CALCRIM No. 373, which provides:
“The evidence shows that (another person/other persons) may have been involved in the commission of the crime[s] charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether (that other person has/those others persons have) been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crime[s] charged. [¶] [This instruction does not apply to the testimony of _______<insert names of testifying coparticipants>.]”
Defense counsel asked that the court additionally instruct the jurors: “… but you may consider other persons involved or possibly involved in the commission of the crime as to whether or not the defendants in this case were involved beyond a reasonable doubt.”
The trial court refused defense counsel’s request, stating:
“[W]e don’t limit how you can use other people as it applies to the reasonable doubt equation. We just say you must not speculate about whether those other persons have been or will be prosecuted. Your duty is to decide whether the defendants on trial here committed the crimes charged. [¶] That doesn’t mean that you can’t point the finger to other non-present defendants, but what you’re telling them, they’re not to consider that as it affects the guilt or innocence of the defendants involved in this case. In other words, the fact that the other defendant aren’t on trial here isn’t an indication that the defendants are probably guilty or are not probably guilty. I think that’s the sole concern. [¶] So with the exception of those changes I made, like lining out the last bracketed paragraph, we’ll give 373.”
Appellant now contends that, “given the nature of the circumstantial evidence tending to support a finding that the firearm was constructively possessed by Shandrell Epps, the jury should have been instructed that they could, ‘consider other persons involved or possibly involved in the commission of the crime as to whether or not the defendants in this case were involved beyond a reasonable doubt,’ or some equivalent message relating appellant’s third party culpability defense to the reasonable doubt standard.” We find any error nonprejudicial.
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] …’” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
We recognize that a defendant has a right on request to a pinpoint instruction on a particular defense theory, so long as it does not highlight specific evidence regarding the defense. (People v. Earp (1999) 20 Cal.4th 826, 886.) Because the latter type of instruction “invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence,” it is considered “argumentative” and therefore should not be given. (People v. Gordon (1990) 50 Cal.3d 1223, 1276, disapproved on another point in People v. Edwards (1991) 54 Cal.3d 787, 835; accord, People v. Mincey (1992) 2 Cal.4th 408, 437.) A trial court may also refuse to give an instruction if it is confusing. (People v. Gordon, supra, at p. 1275.)
Even assuming defense counsel’s proposed instruction accurately pinpointed the defense theory without highlighting specific evidence regarding the defense, appellant has suffered no prejudice from the trial court’s refusal to give it. The jury was instructed under CALCRIM No. 103 that the prosecution had to prove appellant’s guilt beyond a reasonable doubt, and the jury knew from defense counsel’s argument the defense theory that appellant did not have dominion or control over the firearm, but that it was Epps (the individual who had keys to apartment F), Jacoby (the person on the electricity bill), or Belmonte (the person who signed the lease) who did.
Under these circumstances, it is not reasonably probable that, had the jury been given appellant’s proposed pinpoint instruction, it would have come to any different conclusion in this case. (People v. Earp, supra, 20 Cal.4th at p. 887; People v. Watson, supra, 46 Cal.2d at p. 836.) We reject appellant’s claim to the contrary.
Though appellant urges us to find error of constitutional dimension in the denial of his pinpoint instruction, he does not suggest that any test for prejudice different from the test used in Earp applies. Thus, it is unnecessary that we address the assertion that the error was of constitutional dimension, and we refrain from doing so.
7. Is there cumulative error?
Appellant contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected appellant’s claims of error and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
8. Was counsel ineffective for failing to object at sentencing?
The trial court selected the upper term of three years on the felon in possession of a firearm conviction, which was then doubled because appellant had a prior strike. In addition, the court imposed 2 one-year enhancements pursuant to section 667.5, subdivision (b), which provides that when a defendant is convicted of a felony, the trial court shall imposed a consecutive one-year term for each separate prison term served for any prior felony. In imposing the sentence, the trial court stated:
“The Court finds that [appellant’s] prior convictions as an adult—not talking about the juvenile now. We’re talking about the prison priors and the strike—are numerous. [¶] Find no factors in mitigation. [¶] Find that the single factor in aggravation outweighs the nonexistent factors in mitigation. [¶] … [¶] Furthermore, his criminal record, as we’ve indicated, includes two prior prison terms and unsatisfactory performances on juvenile probation, misdemeanor probation, and state parole .…”
On appeal, appellant contends defense counsel was ineffective for failing to object “to the trial court’s improper reliance upon prior prison terms served for prior convictions used to impose one-year enhancements, and finding the prior convictions being numerous to support the upper term.” According to appellant, had counsel objected, the trial court “may have abandoned the notion of imposing the aggravated term or may have stricken the prior prison term enhancements to avoid this dual use of fact for purposes of punishment.” We find no prejudice and disagree.
Initially, we note that appellant has waived this issue by failing to object at the time of sentencing. (People v. Scott (1994) 9 Cal.4th 331, 351-352; see also People v. de Soto (1997) 54 Cal.App.4th 1, 8-9 [improper dual use of facts to impose upper term waived by failure to impose more specific objection at sentencing].) We nevertheless address the issue because of appellant’s ineffective assistance of counsel claim, but find any error harmless in light of the other valid aggravating factor cited by the court.
At the time of sentencing, section 1170 directed that “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Former § 1170, subd. (b); see also Cal. Rules of Court, rule 4.420(a)-(b).) Sentencing courts have wide discretion in weighing aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
Appellant is correct that former section 1170, subdivision (b) prohibited the trial court from using any fact both as a basis for sentence enhancement and as a basis for imposing the aggravated term. (People v. Jackson (1987) 196 Cal.App.3d 380, 388, disapproved on other grounds in People v. Rodriguez (1990) 51 Cal.3d 437, 444-445, fn. 3.) California Rules of Court, rule 4.420(c) is in agreement: “To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.” In addition, this court recently held that the trial court errs when it uses a prior conviction to impose an aggravated sentence and then also uses the prison term served as a result of that conviction to enhance the sentence by one year pursuant to section 667.5, subdivision (b). (People v. McFearson (2008) 158 Cal.App.4th 810, 816.)
Appellant had two prior prison terms: one as the result of a June 27, 2002, conviction for recklessly evading a police officer (Veh. Code, § 2800.2) and one as the result of an October 14, 2003, conviction for assault with a firearm (§ 245, subd. (a)(2)). The trial court was therefore prohibited from using the prior convictions and resultant prison terms as an aggravating factor in selecting the upper term in addition to imposing the 2 one-year enhancements. Though the trial court erred when it did so, we find the error harmless. “‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) In addition, “a single valid factor in aggravation is sufficient to justify an upper term.” (People v. Forster (1994) 29 Cal.App.4th 1746, 1759.)
Here, the trial court also properly relied on appellant’s other prior convictions. Appellant’s probation report, which the court had an “opportunity to read and duly consider,” lists prior adult convictions dating back to 1998 and includes evading a pursuing police officer (Veh. Code, § 2800.2), driving without a valid license (Veh. Code, § 12500), being drunk in public (§ 647, subd. (f)), disturbing the peace (§ 415, subd. (2)), three violations of driving without current registration (Veh. Code, § 4000, subd. (a)), two violations of driving while privilege revoked or suspended (Veh. Code, § 14601.1, subd. (a)), driving with alcohol while under age (Veh. Code, § 23224, subd. (a)), and two violations of driving under the influence (Veh. Code, § 23152, subd. (a)). In addition, appellant’s juvenile adjudications include battery (§ 243), grand theft and burglary (§§ 466, 487), possession of counterfeit currency (§ 475), and possession of a pistol (§ 12101, subd. (a)).
The trial court also noted, not specifically as an aggravating factor but in its reasoning for denying appellant probation, that appellant’s prior performance on juvenile probation, misdemeanor probation, and state parole had been unsatisfactory. “It is well settled that it is not a dual use of facts to consider one’s performance on parole notwithstanding consideration of the underlying conviction as an enhancement. [Citation.]” (People v. Whitten (1994) 22 Cal.App.4th 1761, 1767.)
Since “the finding of even one factor in aggravation is sufficient to justify the upper term” (People v. Steele (2000) 83 Cal.App.4th 212, 226), any error in dual use was harmless (People v. Cruz, supra, 38 Cal.App.4th at pp. 433-434). We therefore reject appellant’s claim of prejudicial ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 691-692; People v. Boyette (2002) 29 Cal.4th 381, 430 [prejudice is shown when there is a reasonable probability that, but for counsel’s errors, the result would have been different].)
9. Did the upper term violate Cunningham?
Finally, appellant contends that the upper term contravenes the holding of Cunningham, supra, 549 U.S. __ [127 S.Ct. 856]. Appellant acknowledges that we are bound by the California Supreme Court’s holding in People v. Black (2007) 41 Cal.4th 799 (Black II), but raises the issue to preserve it for federal court review.
Apprendi v. New Jersey (2000) 530 U.S. 466 held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Therefore, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 303-305 (Blakely).)
In Cunningham, the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point.)
Interpreting the decision in Cunningham, the California Supreme Court concluded 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, Black II explains, because “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 863]).” (Black II, supra, at p. 812.) “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) 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.’” (Black II, supra, at p. 813.)
In deciding to impose the upper term in this case, the trial court relied on appellant’s numerous prior convictions as an adult. Appellant argues that even assuming the trial court could properly determine whether he had suffered a prior conviction, he was entitled to a jury trial on whether his prior convictions are “numerous.” The court rejected an identical argument in Black II, explaining that such a determination “require[s] consideration of only the number, dates, and offenses of the prior convictions alleged,” which “is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at p. 820.) Accordingly, the trial court’s reliance on appellant’s prior convictions did not conflict with the Sixth Amendment.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
HARRIS, Acting P.J., LEVY, J.