Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS060788
ELIA, Acting P. J.A jury found appellant guilty of attempted premeditated murder and assault with a firearm. (Pen. Code, §§ 664/187, 245, subd. (a)(2).) The jury also found true various enhancements. The trial court sentenced appellant to a state prison term of 40 years to life. We affirm.
Evidence at Trial
Joel Arciniega and his girlfriend Maria Adalpe were walking down a street in King City around 11:30 p.m. on January 20, 2006. Two men, appellant and his cousin Miguel Ramos, got out of a car parked across the street and approached them. Arciniega had known appellant since third grade and both Arciniega and Adalpe knew appellant by his nickname "Burrito." Some months earlier, Arciniega and appellant had engaged in a fist fight based on their memberships in rival gangs. Ramos put a gun to Arciniega's head. Arciniega shoved Adalpe behind him to protect her. Appellant "socked" Arciniega in the mouth. Appellant told Ramos, "Shoot the scrap, shoot the scrap." Ramos pointed the gun at Arciniega's stomach. Appellant and Ramos started to walk away and then Ramos turned and shot Arciniega in the hip. Ramos and appellant then ran to the car and drove away.
Adalpe ran to a nearby house where her brother's friend lived. Arciniega did not want the police to be called; he wanted his friend to come and pick him up and take him to the hospital. After spending some time at Adalpe's house and another friend's house, Arciniega was taken to the hospital.
A police officer came to the hospital to talk to Arciniega. Arciniega did not want to talk to the officer but eventually told him that a car had driven past him with two young men in it. Arciniega told the officer that the passenger "hollered out scraps or F scraps, which is a very negative term for Sureno gang members." He told the officer that he did not know who these people were. Explaining at trial why he had not been truthful with the officer, Arciniega testified, " 'Cause I don't want to seem a rat."
While Arciniega was still in the hospital recovering from surgery, his family came to visit him. He testified, "I was honest with my family." He told his sister Cynthia Arciniega that Burrito had hit him in the face and that Burrito's cousin had shot him. Cynthia told another brother and her mother, who called the police. Although Arciniega did not approve of his family contacting the police, at his family's urging he told the officer what had happened. He also picked appellant and Miguel Ramos out of photo line ups. Adalpe also identified appellant and testified similarly about his conduct.
In September 2006, when Arciniega was in Monterey County Jail, a defense investigator interviewed him. Arciniega told the investigator that he did not know "the shooter or the one next to him." He testified that he said this because he was housed in a Sureno pod and it was important to him that he not be "labeled a rat" because it was "against the rules" for Surenos to "rat on people." He said that if the Surenos found out that he had told the investigator who had been involved in the shooting, "they could, you know, kill me or something." Arciniega testified that, rather than "ratting" on people to the authorities about having been victimized by a rival gang, the preferred method is to "Tell your gang members and they'll do something about it." Arciniega testified that he had been a Sureno for four years but that he did not want to be one anymore. He testified that now that he had a wife and a baby he felt it was not worth "getting killed for a color."
The prosecution introduced into evidence recordings and transcripts of two telephone calls appellant made from the jail. In one, appellant calls Miguel Ramos's telephone number and asks to speak to "Miguel." In a conversation in both Spanish and English, Ramos told appellant that Ramos had taken the "things far away." An officer testified that based on his experience working with gangs and jail inmates, the "things" referred to were firearms. Ramos also discussed that a witness has to "say it in your face, they go up to the stand and they can, they can say it over here to the cops over there with the cop. But a lot of them, they won't fucking to up there, 'ey." In a call appellant made to his mother, he said that the police "don't have any proof" and that "perhaps in three days I get out." He said "just remember that I was there in the house."
Other witnesses provided information in support of the charged gang allegations concerning the primary activities of the Norteno criminal street gang. An officer testified that appellant was an active Norteno gang member. The prosecution played a DVD made from viewing appellant's MySpace account page in which appellant raps about his gang associations and the rivalry between Nortenos and Surenos. A defense investigator testified about inconsistent statements made by Arciniega and Adalpe concerning the identity of Arciniega's assailants.
Jail Telephone Call Recordings
Background
During pretrial motions, defense counsel objected to the introduction into evidence of recordings and transcripts of telephone calls appellant made from the jail. At the beginning of the call appellant made to Miguel Ramos's telephone number, a recording of a cheery female voice announced, "This is a collect call from an inmate at the county jail" and gave instructions about how to accept charges. The voice then said, "This call is subject to monitoring and recording. Thank you for using Evercom." Someone other than Ramos answered the phone and appellant asked for "Miguel." When Ramos came to the phone, appellant started talking, and Ramos immediately told him, "Don't say nothing, nothing on the phone. . . ." Appellant and Ramos then had the conversation that included Ramos telling appellant that he had taken the "things far away."
Defense counsel argued that any statements by Ramos were hearsay and that "any admission of [Ramos's] statements violated the Confrontation Clause of the Sixth Amendment" citing Crawford v. Washington (2004) 541 U.S. 36 (124 S.Ct. 1354) (Crawford). Counsel referred to the recorded message at the beginning of the call and argued, "because of the admonishment at the beginning of the recording that it's being recorded, that clearly it could be used by law enforcement and it falls within the purview of Crawford." The trial court overruled the objection saying, "It is clearly a party admission in view of the context of the answers given to the statements and questions that are made."
Discussion
Appellant contends, "The trial court erred and denied appellant his right to confront witnesses under the Sixth Amendment of the U.S. Constitution when it allowed the prosecution to play a taped jail-house phone call between appellant and 'Miguel.' " Relying on Crawford, appellant contends "that 'Miguel's' statements should be deemed testimonial and were therefore inadmissible because he was not called to testify at the trial."
A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) In Crawford v. Washington, supra, 541 U.S. 36, the prosecution introduced at trial a tape recording of a police interview with a witness who did not testify. The United States Supreme Court reversed the conviction, finding that the interview was not admissible. The court held that unless a witness is unavailable at trial and the defendant has had an opportunity to cross-examine the witness the out-of-court "testimonial" hearsay is barred by the confrontation clause. The Crawford court did not spell out a comprehensive definition of "testimonial." It did state that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." (Id. at p. 68.) Earlier in the opinion, the Crawford court explained the history leading to the implementation of the Confrontation Clause and stated: "The principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." (Id. at p. 50.) "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framer's design to afford the States flexibility in their development of hearsay law . . . ." (Id. at p. 68.)
In Davis v. Washington (2006) 547 U.S. 813 (126 S.Ct. 2266), the court explained that a statement is "nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." (Id. at p. 822.) A statement is testimonial "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Ibid.) The court defined "interrogation" broadly, to include any questioning by law enforcement or emergency personnel, regardless of the formality or informality attending the questioning. (Id. at p. 827.) The court held that the threat of criminal prosecution for making a false statement to law enforcement officers "imports sufficient formality" to render testimonial any statement given during an interrogation "solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator." (Id. at p. 826.)
In People v. Cage (2007) 40 Cal.4th 965, our Supreme Court discussed Crawford and Davis. The court derived "several basic principles" which it enumerated. (Id. at p. 984) The court said, "First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony -- to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Id. at p. 984, fns. omitted.)
Appellant asserts, " 'Miguel's' statements should be considered testimonial because 'the primary purpose of the [recorded admonition preceding the call] is to establish or prove past events potentially relevant to later criminal prosecutions.' " Respondent contends that appellant's statements were admissible as party admissions, as adoptive admissions, and as evidence of consciousness of guilt. Respondent argues that Miguel's statements "were admissible to give context to appellant's party admissions and adoptive admissions and were therefore properly admitted for a non-hearsay purpose." Whether evidence was admitted in violation of the confrontation clause is subject to our independent review. (Lilly v. Virginia (1999) 527 U.S. 116, 137 [119 S.Ct. 1887]; United States v. Weiland (9th Cir.2005) 420 F.3d 1062, 1076, fn. 11.)
Ramos's statements made during the conversation with appellant do not meet the criteria for testimonial statements. The statements were taken, that is, recorded, for reasons as much related to the security of the penal institution as to establish some fact for use in a trial. The statements were clearly not given for the purpose ascribed to testimony, either. The participants in the conversation were actually taking pains to obscure their meaning so that what they said could not be used in such a manner. Considering all the circumstances that might reasonably bear on the intent of the participants in the conversation, that is, appellant and Ramos, the statements were most definitely not given for use as testimony.
Crawford speaks in terms of an examination by law enforcement leading to a statement. The telephone conversation here was not in any way an examination by law enforcement. No questions were asked by law enforcement. Furthermore, Ramos's statements to appellant were neither formal nor made to a governmental officer or agent. The Davis court held that with respect to a police interrogation conducted for the purpose of investigating a crime, the requirement of formality is met because a false statement to a police officer in the course of an investigation may result in criminal prosecution. (Davis, supra, 547 U.S. at pp. 827-830.) Ramos did not risk prosecution if he lied to appellant. Nor could either appellant or Ramos be considered to have been acting as agent of the police or the prosecution. Ramos advised appellant at the beginning of the call, "don't say anything," clearly indicating that he wished exactly the opposite, that their statements be oblique enough that they could not be used by the prosecution as information about the crime. Rather, given their relationship, Ramos was more akin to an acquaintance. (Crawford, supra, 541 U.S. at p. 51; Davis, supra, 547 U.S. at p. 823.)
This recorded jail-house telephone conversation is closer to the "off-hand, overheard remark" statements identified in Crawford as not implicating the core concerns of the confrontation clause. This was the conclusion that was reached in State v. Chio Hang Saechao (2004) 195 Ore.App. 581 [98 P.3d 1144]. Appellant distinguishes Saechao noting "there the court never discussed whether that call had been preceded by an admonition." Referring to the recorded statement at the beginning of the call, appellant argues that "While the recording does not say why the call may be monitored or recorded, appellant submits that the reason is apparent – so that governmental officials can monitor possible illegal activity." Appellant argues that the "post admonition statements are thus analogous to statement made after a criminal suspect is advised of Miranda warnings."
Although telephone calls from the jail do begin with the announcement that "this call is subject to monitoring and recording," this does not mean that the primary purpose of recording jail telephone calls is to obtain evidence. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, with certain limited exceptions, prohibits the unauthorized interception of "any wire, oral, or electronic communication." (18 U.S.C. § 2511(1)(a)). These protections apply to prisoners and prison monitoring. (U.S. v. Amen (2d Cir. 1987) 831 F.2d 373, 378.) The admonition is given to provide the prisoner with meaningful notice that telephone calls over the jail phones are subject to monitoring, and thus the prisoner's decision to engage in conversations over those phones constitutes implied consent to that monitoring and takes any wiretap outside the prohibitions of the federal law. (See People v. Loyd (2002) 27 Cal.4th 997.) This admonition, given to make the recording of the conversation permissible under federal wiretapping laws, does not serve to transform a cagey conversation between associates into an examination by law enforcement. The trial court did not err and did not deny appellant his right to confront witnesses by admitting the evidence of the jail phone calls.
Sentencing
Background
The trial court sentenced appellant to a state prison term of 40 years to life. On count 1, the attempted murder conviction, the trial court imposed a 15-year-to life term pursuant to Penal Code section 186.22, subdivisions (b)(1) and (5). The trial court imposed a consecutive 25-years-to-life term on this count pursuant to Penal Code section 12022.53, subdivisions (d) and (e).
The prosecutor clarified that, "the Court had stated that it was imposing a 15 year to life sentence which technically is correct. It's actually a life term with a minimum period before parole eligible of 15 years pursuant to Penal Code Section 186.22(b)(5) . . . . And then the Court imposed a consecutive term of 25 years to life pursuant to the law under 12022.53 (d) and (e)."
On count 2, the assault with a firearm conviction, the court imposed the mid-term of three years plus a five-year gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1). Sentence on count two was stayed under Penal Code section 654. The court also imposed various fines and fees.
The trial court had found true a strike allegation, based on a prior juvenile adjudication. However, at sentencing, the court granted appellant's motion to dismiss the strike allegation based on this court's case of People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847. Noting that review had been granted, the trial court said, "I don't know what happens if they change their minds or if they overrule. . . . That's second semester stuff . . . . I'm not taking [the strike] into consideration and dismissing the strike on the basis it was a juvenile strike in accordance with [Nguyen] and that's the only reason I'm doing it."
Discussion
Appellant contends, "The sentence imposed under Penal Code section 186.22 must be stricken because it is an unauthorized sentence." Appellant asserts that "the 15-year-to-life sentence for the attempted murder conviction should be reduced to a term of 7-years-to-life."
The punishment for premeditated attempted murder under section 664, subdivision (a), is "life with the possibility of parole" with a minimum term before parole eligibility of seven years. (See Pen. Code, § 3046, subds. (a)(1) & (a)(2).) Appellant's 15-years-to-life term on the attempted murder count here was imposed pursuant to Penal Code section 186.22, subdivisions (b)(1) and (5), which provide: "(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: . . . [¶] (5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
The consecutive 25-years-to-life term on the attempted murder count was imposed pursuant to Penal Code section 12022.53, subdivisions (d) and (e). Penal Code section 12022.53, subdivision (d) provides, "Notwithstanding any other provision of law, any person who, in the commission of a felony [attempted murder] . . . personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." Subdivision (e)(1), provides: "(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)." Of concern here is the further provision in section 12022.53, subdivision (e)(2) which provides, "(2) An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense."
Appellant observes that the gun enhancement of Penal Code section 186.22, subdivision (b) applies "because the jury found that appellant violated Penal Code section 186.22, subdivision (b), and because the evidence showed that another person fired the gun." Appellant argues that, because Penal Code section 12022.53, subdivision (e)(2), states that an "enhancement" for participation in a criminal street gang activity shall not be imposed in addition to the gun enhancement, unless the person personally used or personally discharged a firearm in the commission of the offense, "the trial court erred in imposing the expanded fifteen-year-to-life sentence on the attempted murder charge due to the gang enhancement." Respondent disagrees that when section 12022.53, subdivision (e)(2), applies, then section 186.22 should not apply arguing, "Section 186.22, subdivision (b)(5) is not a sentence enhancement; rather, it provides for a minimum parole eligibility period."
In People v. Salas (2001) 89 Cal.App.4th 1275, the trial court imposed a 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5) on a defendant convicted of attempted murder. The evidence was equivocal as to who fired the gun used to commit the crime, and the jury was instructed the section 12022.53 enhancement applied if it found the defendant acted as a principal. Relying on section 12022.53, subdivision (e)(2), the Court of Appeal reversed the imposition of the 15-year minimum term finding, "Defendant is correct in his assertion that since he was never found to have personally used a firearm, . . . section 186.22, subdivision (b)(5) . . . . is inapplicable to this case." (Id. at p. 1281.) Appellant argues that the trial court here erred under Salas by imposing both a firearm use enhancement under section 12022.53, subdivision (e)(2), and a minimum parole eligibility term under section 186.22, subdivision (b)(5).
Appellant recognizes that Salas did not determine whether "the 15-year-to-life sentence resulting from the gang allegation [is] actually an 'enhancement.' " Appellant argues that, because the provisions of section 186.22 continue to be routinely referred to as enhancements (see, e.g. People v. Sengpadychith (2001) 26 Cal.4th 316, 321, fn. 2), "it is apparent that when the Legislature enacted Penal Code section 12022.53, subdivision (e)(2), it intended that no sentencing provisions under section 186.22 should apply."
Appellant's argument loses much of its persuasive force when considered in light of precedent from a higher court than ours. In People v. Jefferson (1999) 21 Cal.4th 86, our Supreme Court said, "A sentence enhancement is 'an additional term of imprisonment added to the base term.' " (Id. at p. 101, quoting Cal. Rules of Court, rule 405(c) (now rule 4.405(3)).) In Robert L. v. Superior Court (2003) 30 Cal.4th 894, our Supreme Court explained, "[A]n alternate penalty provision . . . 'sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.' " (Id. at p. 900, fn. 6, quoting People v. Jefferson, supra, 21 Cal.4th at p. 101, former italics added.)
People v. Jefferson, supra, 21 Cal.4th at page 101 appears to stand for the proposition that a sentence imposed pursuant to an "alternate penalty provision" is a "penalty for the underlying felony itself" and is not a sentence enhancement. Thus, section 186.22, subdivision (b)(5), providing for a minimum parole eligibility term of a minimum of 15 calendar years, is an alternate penalty provision, not an enhancement. (See People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.) Accordingly, because the 15-years-to-life term for appellant's conviction for the attempted murder was pursuant to the "alternate penalty provision" in section 186.22, subdivision (b)(5), and not pursuant to a proscribed sentence enhancement under another statute, his conviction is a qualifying felony under (a)(18) of section 12022.53, and the trial court properly enhanced defendant's sentence under section 12022.53 (e)(2).
Disposition
The judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, J. DUFFY, J.