Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF22997A, Kenneth C. Twisselman, II, Judge.
John Steinberg, 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, Louis M. Vasquez, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
The United States Drug Enforcement Administration (DEA) identified appellant as a suspected cocaine base trafficker and obtained authorization to wiretap his phone. More than 1, 300 of appellant’s calls, both incoming and outgoing, were recorded during a 30-day span from mid-February to mid-March of 2008. The DEA agent in charge of the investigation testified that 276 of these 1, 300-plus calls pertained to drug sales. A jury found appellant guilty of transporting cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1), three counts of possession of cocaine base for sale (§ 11351.5; counts 2, 4 and 6), and seven counts of selling or offering to sell cocaine base (§ 11352, subd. (a); counts 3, 5, 9, 10, 11, 12 and 13). The jury acquitted appellant on one count of selling or offering to sell (count 7) and on one count of possession for sale (count 8). The court sentenced appellant to a total prison term of 10 years and four months. This consisted of a five-year upper term on count 1, plus four 16-month terms (one third of the four-year middle term) on counts 5, 9, 12 and 13. The terms imposed on other counts were either ordered to be served concurrently or stayed under Penal Code section 654.
All further statutory references are to the Health and Safety Code unless otherwise stated.
Appellant’s jury heard (and had written transcripts of) several recorded telephone conversations between appellant and his alleged customers. Although some of these recorded conversations were found by appellant’s jury to include offers by appellant to sell cocaine base (also known as rock cocaine or crack cocaine), a conclusion which certainly seems reasonable given the content of those conversations (as we shall explain in more detail below), in some instances appellant’s purported customers were stopped by police shortly after meeting with appellant and no cocaine base was found in their possession. On this basis appellant challenges the sufficiency of the evidence to support his convictions on five counts of selling or offering to sell cocaine base. As we shall explain, however, the law is well established that the crime of offering to sell cocaine base is committed when the offer to sell is made, and a subsequent actual sale need not be proven in order for a defendant to be convicted of offering to sell.
APPELLANT’S CONTENTIONS
Appellant first contends that his convictions on counts 9 through 13 for selling or offering to sell cocaine base are not supported by substantial evidence. Second, he contends that admission into evidence of a hearsay statement of one of his purported customers (Shirley Sanders) violated his constitutional right to confront a witness against him, or alternatively that his trial counsel’s failure to object to Sanders’s hearsay statement violated his federal constitutional right to the effective assistance of counsel. Third, he contends that his five-year upper term on count 1violated his federal constitutional right to a jury trial. As we shall explain, applicable law does not support any of these contentions.
FACTS
Counts 9 and 10
On February 15, 2008, DEA agents intercepted phone calls between Shirley Sanders and appellant, and between Bridget Vaughn and appellant. Vaughn said she was “tryin[g] to see some [] CDs.” Sanders asked for “DVDs.” No specific CD or DVD was mentioned. The DEA case agent opined CD and DVD were coded talk for cocaine base. Appellant arranged to meet Vaughn and Sanders at a fitness club/gym.
DEA agents and Bakersfield police officers then set up surveillance of the location. They observed the following: appellant exit the gym; Vaughn drives up and parks next to the gym; appellant gets into her car and stays inside for about 30 seconds to a minute; then, he gets out and goes back inside the gym. About five to 10 minutes after Vaughn left, the surveillance team observed the following: Sanders drives up and parks by the gym; appellant exits the gym and walks to Sanders’s car; appellant reaches into his waistband and removes an object; he then gets into Sanders’s car; after a few minutes, he gets out.
A marked Bakersfield police vehicle stopped Sanders’s car though no drug was found, Sanders later admitted – after being arrested on July 13, 2007 – that she ate the plastic baggie of cocaine base prior to the officer walking up to her car during the February 15, 2008, stop. She also admitted buying user quantities of cocaine base from appellant for about one year.
A DEA agent recalled Vaughn’s car was stopped as well, but no drugs were found in her possession.
Count 12
On February 20, 2008, DEA agents intercepted phone calls between Shabazz Muhammed and appellant. Appellant asked Muhammed if he wanted “one of them movies.” Muhammed said he wanted “two.” No specific movie was mentioned. The DEA case agent opined “movies” was coded talk for cocaine base. Appellant arranged to meet Muhammed at the fitness club/gym.
DEA agents and Bakersfield police officers then set up surveillance of the location. They observed the following: appellant arrives in his truck; he gets out and walks into the gym; Muhammed arrives in his car; Muhammed gets out and walks into the gym; a few minutes later, Muhammed exits the gym and gets back into his car and drives off.
A marked Bakersfield police vehicle stopped Muhammed’s car. No drugs were found on Muhammed or in his car.
Count 11
On February 23, 2008, DEA agents intercepted phone calls between Donte White and appellant. Appellant asked White, “how many of them outfits you trying to get?” White said, “two of them.” No specific type of outfit was mentioned. The DEA case agent opined “outfits” was coded talk for cocaine base. Appellant arranged to meet White at a Wing Stop fast food restaurant.
DEA agents then set up surveillance of the location. They observed White’s car drive into the restaurant parking lot. As appellant’s truck approached the area, DEA agents intercepted another phone call wherein appellant and White changed the meeting place to a nearby McDonald’s. The surveillance team followed White’s car. DEA agents observed appellant’s truck parked in McDonald’s parking lot. White pulled into the parking lot. White then got out of his car, walked to appellant’s truck, opened the passenger side door, and got into the truck. A few minutes later, White got out of the truck and walked back to his car and drove away.
Due to unavailability then of a marked police vehicle, White’s car was not stopped.
Count 13
DEA agents intercepted phone calls between Misty Garcia and appellant. Appellant asked Garcia if she wanted “that same outfit.” Garcia replied, ” Yea, yea, yea.” Again, the reference to outfit was nonspecific. On February 24, 2008, they agreed to meet at the Valley Plaza Mall.
DEA agents and Bakersfield police officers set up surveillance of the location. They observed appellant’s truck parked in the mall parking lot. Garcia walked toward and got into the truck. About five minutes later, she got out of the truck and went back into the mall.
A uniformed Bakersfield police officer stopped and searched Garcia. Though no drugs were found on her, inside her purse were a scale and a large sum of money.
Counts 3 and 4
On February 25, 2008, DEA agents intercepted phone calls between Milton Harling and appellant. Harling said to appellant, “[S]ee I don’t want to spend it, that’s what I’m saying, I’m ready for you.…” the DEA case agent explained that Harling was indicating that he had money to spend for cocaine base, that he did not want to spend the money on anything else but the drug, and that he wanted the drug now. Appellant arranged to meet Harling at a car shop.
DEA agents and Bakersfield police officers set up surveillance of the location. They observed Harling’s car arrive. Harling got out and walked to appellant’s truck. He went into the truck. About 10 to 15 seconds later, Harling got out and got back into his car. Harling then drove away.
A marked Bakersfield police vehicle stopped Harling’s car. The officers approached, and then asked Harling to step out of the car. The officers searched Harling and located a small amount of marijuana. When the officers tried to arrest Harling, Harling put something into his mount. A struggle ensued. The officers saw a substance inside Harling’s mount, and a white film covered Harling’s lips. Harling eventually spat the substance onto the driver side seat and floorboard.
The substance was tested and determined to be cocaine base.
Counts 5 and 6
DEA agents intercepted phone calls between John Porter and appellant. In one call, Porter asked appellant if he had “three of them DVDs.” Appellant replied, “So is that what you want, three of them movies.” In another call, Porter asked, “[H]ow many DVDs you got with you?” Appellant replied, “[A]ll I got is -- with me is … one of them DVD and one of them little small CDs.” In another call, Porter said to appellant, “I’m just gonna grab … two of those DVDs.” Again, the references to CD and DVD were nonspecific. They arranged to meet on February 27, 2008, at a side street by a park.
DEA agents and Bakersfield police set up surveillance of the location. They observed appellant’s truck park on the street. A few minutes later, Porter’s car drove by. Appellant and Porter then drove their vehicles in tandem into a cul de sac. Three to four minutes later, appellant and Porter drove their vehicles out of the cul de sac.
A marked Bakersfield police vehicle stopped Porter’s car. The officers approached and smelled marijuana. They had Porter step to the rear of the car, by the curb. They searched Porter. As they searched, a small bindle containing a white substance dropped to the ground.
The substance was tested and determined to be cocaine base, totaling about 26.65 grams.
Counts 1 and 2
On April 2, 2008, while on patrol in a marked vehicle, Bakersfield police officers saw appellant pass by in his truck. The officers made a u-turn to follow. Appellant then accelerated, swerved, and came to a sudden stop. Appellant threw several plastic baggies over the roof of the truck. The officers detained appellant, and searched the area where he threw the baggies. They found five plastic baggies with a white substance inside. They also found clear plastic baggies inside the truck.
The substance was tested and determined to be cocaine base, totaling about 71 grams.
Agent Plennes testified that one-tenth to two-tenths of a gram of cocaine base is a “user amount.” A crime laboratory analyst, Jeanne Spencer, testified that the average amount for a single usage was about 0.12 grams, and that the 71 grams appellant was arrested for on April 2 was roughly 700 times as high as a single usage amount.
I.
SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTIONS ON COUNTS 9 and 13
A. The Standard of Review
When a criminal conviction is challenged as lacking evidentiary support, “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. Johnson (1980) 26 Cal.3d 557, 578.) “The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.” (People v. Bean (1988) 46 Cal.3d 919, 932.) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” (Id. at pp. 932-933.) “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’” (People v. Hillery (1965) 62 Cal.2d 692, 702.) “[I]t is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) “Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.” (People v. Pierce (1979) 24 Cal.3d 199, 210.) “[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja, supra, 4 Cal.4th at p. 1139, [citation], fn. omitted.)
B. Health and Safety Code Section 11352
Section 11352 makes it a crime to sell or offer to sell cocaine base. The statute states in pertinent part: “Except as otherwise provided in this division, every person who... sells, ... or offers to... sell, ... any controlled substance specified in... paragraph (1) of subdivision (f) of Section 11054, ... shall be punished by imprisonment in the state prison for three, four, or five years.” The controlled substance specified in paragraph (1) of subdivision (f) of section 11054 is “Cocaine base.” Appellant argues that the evidence was insufficient to convict appellant of offering to sell cocaine base on counts 9 through 13 because the recipients of those offers were not found to be in possession of cocaine base after speaking with appellant on the telephone and then meeting with him. “It is settled, however, that delivery is not an essential element of the offense of offering to sell a narcotic.” (People v. Jackson (1963) 59 Cal.2d 468, 469.) “The offense of offering to sell a narcotic has two necessary elements: (1) an act of selling or offering to sell the narcotic and (2) the specific intent to sell it. Actual delivery is not required.” (People v. Pimental (1970) 6 Cal.App.3d 729, 734; see also People v. Jackson, supra, 59 Cal.2d at pp. 469-470; People v. Stenchever (1967) 249 Cal.App.2d 74, 77-79; People v. Reynolds (1969) 276 Cal.App.2d 825, 828; People v. Innes (1971) 16 Cal.App.3d 175, 178; and 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 101 at pp. 616-617.) “In an offer to sell a narcotic, the proscribed act is the making of the offer. An accompanying intent to do a further act, i.e., to sell, is inherent, making the offense a specific intent crime.” (People v. Daniels (1975) 14 Cal.3d 857, 861; see also People v. Brown (1960) 55 Cal. 2d 64, 68.) “Proof of consideration moving to defendant is not required.” (People v. Stenchever, supra, 249 Cal.App.2d at p. 78.) “Delivery is not an essential element.” (Ibid.) “If specific intent is present, the offense is complete at the time of the offer.” (People v. Medina (1972) 27 Cal.App.3d 473, 476.) “[N]either delivery of the drug, an exchange of money, nor a direct, unequivocal act toward a sale are necessary elements of the offense.” (People v. Encerti (1982) 130 Cal.App.3d 791, 800-801.)
Appellant argues that the evidence was insufficient to support convictions on counts 9 through 13 for transporting cocaine base. Although section 11352 also prohibits the transporting of cocaine base, appellant’s argument ignores the fact that counts 9 through 13 were not prosecuted on the theory that appellant transported cocaine base. The trial judge expressly told the jury that although counts 1, 3, 5, 7, 9, 10, 11, 12, and 13 were all charged as violations of section 11352, only count 1 was a “transportation charge.” The others (which of course include counts 9 through 13, the subjects of appellant’s substantial evidence argument on this appeal) involved selling or offering to sell cocaine base. As the trial judge summed up his explanation of this: “Count 1 is transportation. Those other counts are sale [sic] or offer to sell.”
Appellant then argues that the evidence was insufficient to convict appellant of offering to sell cocaine base on counts 9 through 13 because there was no evidence of a “positive assertion of willingness to sell a specified quantity of drugs for an agreed-upon price.” Appellant cites no authority, however, holding or even suggesting that this is a required element of the crime. It is not. Evidence of a positive assertion of a willingness to sell a specified quantity of drugs for an agreed-upon price would be evidence of an agreement or contract to sell drugs. To read such a requirement into the statute would contradict the established authority that the only act required is an offer to sell the drugs, not an agreement to sell the drugs. (People v. Pimental, supra, 6 Cal.App.3d 729; People v. Daniels, supra, 14 Cal.3d 857; People v. Innes, supra, 16 Cal.App.3d 175; People v. Stenchever, supra, 249 Cal.App.2d 74.)
The authorities appellant does cite support our conclusion that the evidence in this case was sufficient on the counts in question. In People v. Encerti, supra, an undercover agent asked the defendant if the defendant could sell him an ounce of heroin. The defendant answered “‘I can do ounces but it will cost you nine thousand per ounce.’” (People v. Encerti, supra, 130 Cal.App.3d at p. 795.) “The agent expressed interest, but declared that he might want to start with a lesser amount, such as a quarter or an eighth of an ounce. [Defendant] replied, ‘That’s okay with me.’” (Ibid.) No further attempt at a purchase was made. The court rejected the argument that the words “I can do ounces” were not sufficient evidence of an offer to sell an ounce to the agent. The fact that the agent expressed reluctance to buy an ounce, and that there was no agreement by the agent to buy an ounce at the offered price, did not matter. “[W]e find respondent’s declaration of willingness to provide an ounce of heroin at a prescribed price sufficient evidence of an offer, particularly when considered in light of the other sales made by respondent.” (Id. at p. 801.) Although in Encerti the offer included a mention of the selling price, the opinion nowhere asserts that a mention of the selling price is required. The lack of such a requirement is demonstrated by another case appellant cites, People v. Allen (1967) 254 Cal.App.2d 597.
In Allen, the defendant offered in a telephone conversation to sell “eight jars” of benzedrine tablets. (People v. Allen, supra, 254 Cal.App.2d at p. 601.) The defendant and the offeree agreed to meet at a bar, but the police then arrested the defendant, who had 100, 000 benzedrine pills in his truck. The court stated: “In view of defendant’s telephone statements, ‘Yeah, I have got them [the jars], ’ and that he could be at the bar ‘in a few seconds, ’ the absence of any compelling evidence that defendant’s offer was false or insincere, and the evidence that defendant possessed a large quantity of benzedrine pills, the trial court could reasonably conclude that defendant had meant what he had said to Miller when he offered to sell Miller the eight jars of benzedrine.” (Id. at p. 602.) The omission of any mention of a selling price was not fatal to the sufficiency of the evidence to support the offer to sell conviction.
The third case relied on by appellant, People v. Innes, supra, is similarly unhelpful to him. In Innes an officer expressed to the defendant an interest in buying Mescaline and asked defendant “‘how much she could do.’” (People v. Innes, supra, 16 Cal.App.3d at p. 177.) The defendant “said ‘she would have to check, ’” and then left. (Ibid.) Not surprisingly, the court concluded that this did not constitute an offer to sell. When, the defendant returned five minutes later and said “I can sell you thirteen caps, ” and gave the officer 13 red capsules for $50, this was then sufficient evidence of an offer to sell. (Id. at p. 178.) The real issue in Innes was whether the defendant was properly convicted of offering to sell Mescaline even though the 13 capsules turned out to be LSD and not Mescaline. The court held that under the facts of that case, the defendant believed she was selling Mescaline, made the offer to sell Mescaline with an intent to sell Mescaline, and thus was properly convicted of offering to sell Mescaline. Nothing in the case stands for the proposition that a positive assertion of a willingness to sell a specified quantity of drugs for an agreed-upon price is required.
C. The Convictions are Supported by Substantial Evidence
Counts 9 and 10
In a recorded February 15, 2008 telephone conversation Shirley Sanders told appellant “I was calling to see if you had any DVDs.” Appellant said “Yup” and “I’ll be at the gym around about four, four fifteen, for [sic] thirty.” The jury apparently concluded that this was an offer by appellant to sell cocaine base to Sanders, and/or that Sanders then did purchase cocaine base from appellant. There was an abundance of evidence to support these conclusions. Appellant and Sanders then met in Sanders’s car outside the gym. Sanders later told agent Plennes that Sanders “had eaten the crack cocaine that she had purchased from Odis Wiley prior to the officer walking up to her car” when she was later stopped on February 15. Sanders also testified at appellant’s trial as a prosecution witness, and said that she had herself entered a plea of either guilty or no contest to a charge of attempted possession of cocaine base as a result of this incident.
At 4:21 p.m. on February 15, 2008, Bridget Vaughn called appellant and told him in the recorded call “I’m tryin to see some of your cds.” Appellant told her “I’m up here at the gym right now” and “Well you can come up here if you want to right now” and “It would be better for you to come up here.” Vaughn said: “I’m a come up there. Alright, bye.” Vaughn then drove to the gym. Appellant exited the gym, entered the passenger side of Vaughn’s car, stayed there for 30 seconds to a minute, then got out and went back into the gym. The jury could and apparently did conclude that appellant’s statement “Well you can come up here if you want to right now” was an offer to sell Vaughn cocaine base. Although Vaughn was subsequently stopped by police and no cocaine base was found in her possession at that time, this fact does not demonstrate any evidentiary insufficiency to the jury’s conclusion. We also note that not a single witness at appellant’s trial ever testified to buying an actual CD or DVD or “outfit” from him. He does not appear to contend that he was actually selling CD’s or DVD’s or movies or “outfits” to anyone, but rather only that the evidence was insufficient to support a finding that he offered to sell cocaine base. There was an abundance of testimony at trial that references to CD’s, DVD’s, movies and “outfits” were coded references to cocaine base.
Count 12
On February 20, 2008 in a recorded telephone conversation Shabazz Muhammed asked appellant “Uh, yeah you coming this way?” ! Appellant told him “Yeah, I’ll be right there by the gym.” Appellant asked Muhammed “All you want to look at is one of those movies, huh?” Muhammed replied “Yeah, I was going to call my boy right now, to see what he wanted to do.” Appellant told Muhammed: “Well call to see what he gonna do, then hit me right back. I might come up that way.” A few minutes later Muhammed called appellant and told him “Yeah, um, I’m gonna hit you in like thirty minutes, ‘cause uh, he just gonna come and pick me up.” Appellant said “OK.” Muhammed said “Then uh, we’ll come your way.” Appellant asked “Alright, you just want uh, one of them movies.” Muhammed said “Yeah, uh, two.” Each man said “Alright” and the conversation ended. A little over two hours later Muhammed called appellant and asked appellant “so you still over there?” Appellant replied “Yeah, I’m... I’m about to be at the gym here in a minute.” Appellant told Muhammed “just come on up because I gonna be there for like an hour and a half.” Muhammed told appellant “OK, so I’ll hit you back then when I uh, come that way then.” Thirty-seven minutes later, at 4:43 p.m., Muhammed called appellant from outside the gym. Appellant told him “Hey, just come on inside, you don’t have to pay or nothing just come on in.” Detective Paslay observed Muhammed arrive in a white Avalon automobile. Muhammed got out of the car, went into the gym, stayed there a minute, came back out, got back into the car and left. Muhammed was later stopped by another officer in a marked police car. Muhammed had a passenger with him. Muhammed and the passenger were searched, and no drugs were found on either one of them. The jury apparently concluded that when appellant asked Muhammed “All you want to look at is one of those movies, huh?” and “Alright, you just want uh, one of them movies, ” he was offering to sell cocaine base to Muhammed. No CD or DVD was seen in Muhammed’s hands by Detective Paslay when Muhammed left the gym. No movie titles were ever mentioned in the telephone conversations between appellant and Muhammed. Under these circumstances, the jury could and did reasonably conclude that appellant offered to sell cocaine base to Muhammed.
Count 11
On February 23, 2008 at 8:11 a.m. appellant and Donte White had a recorded telephone conversation in which they agreed to meet at a business establishment called the Wing Stop. Appellant asked White “OK, uh, how many of them outfits would you uh, trying to get?” White replied “Shit, two of them.” Appellant told White “OK, as soon as you pass uh, ... as soon as you pass Ashe, gimme a call and uh I’ll meet you over there.” At 8:39 a.m. White called appellant and told him “I’m just now uh, um passed... I’m passing Ashe right now.” Appellant told White “Alright cutty, I’ll meet you over there.” The recorded telephone conversations contained no description of any particular type of clothing “outfits.” Agent Both was conducting surveillance near the Wing Stop and saw White arrive there in a dark gray Dodge Charger. Agent Both received a message from the “wire room” that there had been another phone call between appellant and White in which they had changed the meeting place from the Wing Stop to a nearby McDonald’s restaurant. Agent Both headed toward the McDonald’s and saw appellant’s pickup truck headed there also. Agent Both entered the McDonald’s parking lot, saw appellant parked there, and then saw White park White’s gray Charger directly in front of appellant’s truck. White got out of his car, entered the passenger side of appellant’s truck, stayed there for one or two minutes, got back out, went back to his gray Charger, and drove off. No “outfits” were observed. Agent Both then terminated his surveillance. As we have already mentioned, no marked police units were available to stop White, so he was never stopped and searched. When appellant asked White how many “outfits” White wanted, and White said two, and appellant then said “OK” and arranged to meet with White personally, the jury reasonably could and apparently did view appellant’s “OK” as an assertion that appellant was offering to sell cocaine base to White.
Count 13
Numerous telephone calls between appellant and Misty Garcia were recorded. On February 14, 2008, a portion of their conversation went as follows:
“WILEY Hey, you want that that [sic] same outfit right?
“GARCIA Huh? Yea, yea, yea.
“WILEY Okay, I’m going to just umm, hey that whole outfit that, that one outfit I’m just going to uhhh, I’m just going to it all in one, one outfit alright?
“GARCIA Mmm hmmm.
“WILEY Instead of you know what I’m saying. You know what I’m saying?
“GARCIA Yeah, I got you.
“WILEY Alright.
“GARCIA Alright.
In a subsequent call on the night of February 23 appellant asked Garcia “You call me earlier?” Garcia replied “You know what I wanted.” Garcia told appellant “I’m out in the country.” Appellant asked “How (unintelligible) out there?” Garcia replied “Probable like no more than thirty minutes.” Appellant told Garcia “But shit, I don’t want to be traveling around you know what I’m saying?” Agent Plennes testified that he understood this to mean that “appellant doesn’t want to be carrying a specific amount of crack cocaine for a long duration of time” and that “[i]n my opinion, he would rather leave his house and deliver it directly to the customer as opposed to driving around with it for an extended period of time.” Garcia asked appellant “So you have to go all the way and get it or?” Appellant replied: “Naw I’m over here, Naw I’m I’m already ready to go.” Garcia told appellant “I’m going to call you when I leave from over here.”
The next day they spoke on the phone and agreed to meet at the Valley Plaza Mall. Agents placed them under surveillance. Four minutes after appellant told Garcia he had arrived at the mall, appellant had a recorded telephone conversation with John Porter. In it appellant told Porter “I’m up at the mall” and “I’m trying to, you know what I’m saying, get that outfit off me right now, you know what I mean?” Agents saw Misty Garcia enter the passenger side of appellant’s pickup truck in the mall parking lot and remain there for about five minutes. She then got out of the truck, entered the mall, entered and exited different stores in the mall, and was ultimately stopped and searched by Bakersfield police officers. No drugs were found in her possession, although she did have in her purse a scale and a large sum of money. There was no testimony as to the exact amount of that large sum of money.
The search of Garcia took place sometime between 4:30 and 4:45 p.m. on February 24. At 5:05 p.m. she had a recorded telephone conversation with appellant in which she told him, with a sense of urgency in her voice, “I need to holler at you” and “Man, phew, mm-mm, I, this is nine, one, one....” They agreed to meet at a nearby restaurant. At the beginning of the call appellant asked “Who’s this?” Garcia replied “You know who this is.” Agent Plennes testified that “[i]n my opinion it’s a panic call, where Misty Garcia wants to meet with Odis and talk to him about being searched by police after the short-duration meeting at the Valley Plaza mall” and that “she is worried about the telephone call being intercepted by police and she doesn’t want to be known or doesn’t want to give her identification.” In a recorded March 7, 2008 conversation appellant answered the phone by saying “Hello” and Garcia then stated “Man, can I get what I paid for?” Appellant asked “That outfit wasn’t right?” and Garcia responded “It ain’t never right... but one time.” Agent Plennes testified that in his opinion Garcia was complaining about the quantity or quality of drugs she was purchasing from appellant.
Appellant’s jury could reasonably have viewed appellant’s statement that “I’m already to go” as a statement that he was prepared to and was offering to sell Garcia cocaine base on or about February 24. Just as with the other counts contested by appellant, the failure to find cocaine base in the offeree’s possession when she was subsequently stopped by police does not require a conclusion that the conviction is not supported by substantial evidence.
II. OTHER ISSUES
The other issues raised by appellant clearly are without merit.
First, appellant argues that the admission into evidence of Agent Plennes’s testimony that Shirley Sanders told him she had swallowed a bindle of cocaine base as she was stopped by police on February 15, 2008 violated his constitutional right to confront the witnesses against him. It did not. The Sixth Amendment to the U.S. Constitution states in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” (U.S. Const., Amendment VI.) Although the Sixth amendment applies to the federal government, the right of an accused to confront the witnesses against him has been held to be a basic right guaranteed to an accused in state prosecutions under the due process clause of the Fourteenth Amendment. (Pointer v. Texas (1965) 380 U.S. 400, 406; Crawford v. Washington (2004) 541 U.S. 36, 42.) But “when the declarant appears for cross-examination at trial, the Confrontation Clause places no restraints at all on the use of his prior testimonial statements.” (Crawford v. Washington, supra, 541 U.S. at p. 60, fn. 9; see also California v. Green (1970) 399 U.S. 149, 162.) Sanders testified at appellant’s trial. Although she was a reluctant witness and claimed not to remember much about the incident, “‘[t]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”’” (United States v. Owens (1988) 484 U.S. 554, 559.) “The weapons available to impugn the witness’ statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.” (Id. at p. 560; in accord, see also People v. Perez (2000) 82 Cal.App.4th 760, 765-767.)
Appellant then argues that even if there was no violation of the Constitution, his trial counsel’s failure to object to Agent Plennes’s testimony violated appellant’s federal constitutional right to the effective assistance of counsel. This contention fails for several reasons. First, appellant’s trial counsel did object to that testimony. His objection was overruled. Appellant makes no attempt to explain why that ruling was erroneous. Second, even if counsel had not objected, appellant fails to demonstrate how a failure to object would constitute a denial of the right to effective assistance of counsel. To establish a denial of the right to effective assistance of counsel, a defendant must show that counsel’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and that the defendant was prejudiced by counsel’s deficient representation. (People v. Stewart (2004) 33 Cal.4th 425, 429; People v. Anderson (2001) 25 Cal.4th 543, 569.) When Agent Plennes gave his testimony about what Sanders had told him, Sanders had already testified at appellant’s trial, and had already said in that testimony that she had entered a guilty or no contest plea to a charge of attempted possession of cocaine base as a result of the incident, even though she claimed she could not recall the details of that incident, and even claimed to not be able to recall whether she had or had not put cocaine base in her mouth when she was pulled over by the police. Under these circumstances, we could not conclude that a failure to object to what was in essence redundant testimony (even though here there was no failure to object) would constitute deficient representation. And even if we could, we could still not conclude there would have been a reasonable probability of a better outcome for appellant without Plennes’s essentially redundant hearsay testimony.
Finally, appellant’s contention that his upper term sentence on count 1 violated his right to a jury trial must fail under the authority of People v. Sandoval (2007) 41 Cal.4th 825, which this court is bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, J. Hill, J.