Opinion
NOT TO BE PUBLISHED.
Super. Ct. No. 04F06855
BUTZ, J.Defendant John Bartholomew was convicted, after a jury trial, of manufacturing methamphetamine (Health & Saf. Code, §§ 11379.6, subd. (a), 11055) and possession of ephedrine with intent to use it to manufacture methamphetamine (former Health & Saf. Code, § 11383, subd. (c)(1), Stats. 2003, ch. 619, § 1). In a bifurcated trial the court found true enhancement allegations that he had a prior serious felony conviction (Pen. Code, § 667) and had offended again within five years of serving a separate prison term on four occasions (Pen. Code, § 667.5, subd. (b)). Sentenced to 18 years in state prison, defendant appeals. He contends the trial court erred in: (1) denying his motion to suppress evidence obtained in a search of his residence; (2) declining to grant immunity to a prospective defense witness; and (3) imposing an upper term based on facts--that his prior convictions were numerous and continuous--not submitted to a jury. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The motion to suppress
In light of defendant’s contentions of error, we first recount the facts concerning his offenses adduced in the proceedings on his motion to suppress. At the outset he stipulated that on the date of the search he was on parole with a condition subjecting him to search by any peace officer.
Sacramento County Deputy Sheriffs Thomas Lynn and Jerry Henderson were on patrol on August 5, 2004. They were informed of an anonymous telephone report that there was a stolen car, a methamphetamine lab, and a woman screaming for help at a house on Caber Way. They drove to the address given and stopped where they could observe. Defendant and Jerry Hamilton were working on cars and walking around in the front yard. After a few minutes the deputies walked up and contacted the pair.
Deputy Lynn spoke with Hamilton, Deputy Henderson spoke with defendant. Hamilton said he had been staying at the residence for three weeks. He admitted he was on parole. He and defendant said there was a woman named Kimmy in the house. The deputies conferred. Asked if Deputy Henderson had told him defendant was on active parole, Deputy Lynn opined: “I’m fairly certain we would have compared notes on that issue, yes.”
Deputy Lynn went to the door and knocked to check on the woman’s welfare. No one answered. He had already established that defendant and Hamilton were on parole. He entered the house. As soon as he entered he could see into the kitchen. He saw glassware, suspended tubing running up through the cabinet, and coffee filters with a brownish crystalline substance on them, which appeared to be a methamphetamine lab. He found Kimmy in one of the bedrooms and escorted her out of the house. In the garage he found a plastic baggie containing an off-white powdery substance. Narcotics detectives were then summoned.
The motion to compel a grant of immunity
During trial defendant made a motion for an order of the court granting James Oakley use immunity for testimony about his role in the events leading up to the discovery of the methamphetamine lab. When questioned outside the presence of the jury, Oakley declined to answer, asserting the privilege against self-incrimination.
The defense made the following written proffer concerning Oakley’s proposed testimony. Oakley made the anonymous telephone call that led to defendant’s arrest. The day before the arrest, Hamilton told Oakley that he was setting up the methamphetamine lab in defendant’s house. Hamilton proposed that Oakley make a 911 call reporting a domestic dispute at the house. Hamilton expected the police would arrest defendant outside the house without checking inside. This would give Hamilton control over the house and the opportunity to court Kimmy. After this conversation Oakley received information that Hamilton was saying negative things about him. This angered him, so he called in the report when he knew Hamilton would be present at the house.
The prosecution opposed the motion for a grant of immunity. The prosecutor averred that Oakley was then facing felony stalking and terrorist threat charges believed to be a direct result of the investigation in this case and that he could face charges he was manufacturing the methamphetamine in this case if connected to it.
The trial court denied the motion for an immunity grant, expressly finding that, based on the representations of what would be said by Oakley, “the proffered testimony is clearly--is not clearly exculpatory.”
Trial
Defendant concedes there is sufficient evidence to support his convictions. It suffices to say that in addition to the facts leading to defendant’s arrest the evidence at trial showed (1) the house was owned by defendant’s mother, (2) he had been living in the house for more than a month prior to his arrest, (3) the kitchen glassware was being used to manufacture methamphetamine, and (4) ephedrine found soaking there was possessed with the intent to manufacture methamphetamine.
DISCUSSION
I. Claimed Error in Denying the Motion to Suppress
Defendant contends that the trial court erred in denying his motion to suppress the evidence of the methamphetamine lab. He argues that the denial was error because the prosecution failed to prove that the officers knew he was on parole or that the officers verified Hamilton’s status as a parolee before they searched the house. The argument is unpersuasive and the contention of error is without merit.
In reviewing the motion we consider only the evidence before the court at the time of the ruling (People v. Gibbs (1971) 16 Cal.App.3d 758, 761-762), viewed in the light most favorable to the trial court’s implied findings (People v. Orr (1972) 26 Cal.App.3d 849, 852-853). Defendant argues that there is insufficient evidence that the officers knew he was on parole when the search occurred. However, as related, Deputy Lynn testified, without objection, that yes, Deputy Henderson had told him defendant was on active parole. He based his answer on their practice of comparing notes on such issues. He also testified, without objection, that when he entered the house he had already established that defendant and Hamilton were on parole. This is substantial evidence in support of the trial court’s ruling. Accordingly, the trial court did not err in denying the motion to suppress.
The search could also be upheld on the ground it was a valid parole search as to Hamilton.
II. Claimed Error in Denying Use Immunity
Defendant contends the trial court erred in denying the motion to grant Oakley judicial use immunity. He argues, perforce, that the proffered testimony of Oakley met all of the criteria for such an immunity grant. The argument is unpersuasive and the contention of error has no merit.
It is an open question under California law whether any inherent authority exists for a trial court to order an immunity grant without concurrence of the prosecution. Assuming it would be permitted, that is so only when each of the following three elements is met: (1) the proffered testimony is clearly exculpatory; (2) the testimony is essential; and (3) there is no strong governmental interest which countervails against a grant of immunity. (People v. Stewart (2004) 33 Cal.4th 425, 469.)
As related, the trial court found that the proffered testimony was not clearly exculpatory. Defendant argues on appeal that the proffered testimony was clearly exculpatory because “it placed [him] elsewhere while the meth[amphetamine] lab was being installed in his house and it explained how Hamilton had hoped to set him up.” However, contrary to this claim, the proffered testimony did not provide evidence to support an alibi defense, that defendant was “elsewhere.”
The factual arguments on appeal were not discussed in the trial court. Appended to the defense moving papers were two reports of interviews of Oakley, one by a prosecution investigator and one by a defense investigator. These contain various additional assertions by Oakley not mentioned in the statement of facts in the memorandum in support of the motion, nor during hearings on the motion. On appeal defendant principally relies on the following unbroached, additional assertions.
Oakley said that he telephoned Hamilton after he reported the methamphetamine lab to the police and that Hamilton said defendant had just come home. Oakley opined based on this that defendant could not have known about the methamphetamine lab in the house and that he did not think defendant went into the house when he came home. Elsewhere, Oakley told an investigator, “[Defendant] and [Kimmy] to his knowledge were not involved with the [methamphetamine] lab.”
Where a point is not properly raised below, an appellate court ordinarily will not consider it. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, pp. 444-446.) Often the reason is that it is unfair to the trial judge and the adverse party to allow a party to take advantage of silence at the trial level about a matter that could have been corrected or overcome if it had been raised. (See id. at p. 445.)
If we were to take account of the additional assertions to which defendant points for the first time on appeal, it would be unavailing. This is true even if we set aside the inherent lack of verisimilitude of Oakley’s account.
Oakley’s assertions that Hamilton proposed that Oakley make a 911 call reporting a domestic dispute at the house and that Hamilton expected the police would arrest defendant outside the house without checking inside do not make sense. There would be no reason for the police to arrest defendant on a bogus, anonymous report of a domestic dispute unless they entered the house and found the methamphetamine lab.
Oakley’s opinion that defendant could not have known about the methamphetamine lab because Hamilton told him defendant had just come home was not admissible. We assume arguendo that Hamilton’s purported statement to Oakley would have been admissible even though hearsay. However, the “fact” that defendant had recently returned home does not strongly suggest he had no knowledge of the methamphetamine lab. In any event, Oakley’s opinion about the bearing of that fact on defendant’s knowledge of the methamphetamine lab was inadmissible. No reason appears why Oakley’s ability to infer about the bearing of defendant’s recent arrival would be superior to that of a trier of fact, either because it could be rationally based on his perception or helpful to a clear understanding of his testimony. (See Evid. Code, § 800.)
Similarly, Oakley’s ambiguous statement that “to his knowledge” defendant was not involved with the lab was inadmissible. If the remark means that Oakley did not have knowledge that defendant was involved, it is irrelevant. If it means that Oakley had knowledge that defendant was not involved, it would be inadmissible without some showing that he had personal knowledge. (See Evid. Code, § 702.) But there is nothing in his other statements that provides a legitimate basis for such personal knowledge.
In sum, the remarks of Oakley that were not mentioned in the trial court add no significant weight to the claim that his proffered testimony was clearly exculpatory. Under any view of the matter, defendant fails to show that the trial court erred in finding that the proffered testimony was not clearly exculpatory. Thus, the trial court did not err in denying his motion. (See People v. Stewart, supra, 33 Cal.4th at p. 468.)
III. Claimed Sentencing Error
Defendant contends that the trial court erred in sentencing him to an upper term. He argues that under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], the court could not rely upon his numerous prior convictions as a basis because not all of those convictions were put in issue for trial by jury. The argument has been rejected by intervening case law binding on this court. (See People v. Sandoval (2007) 41 Cal.4th 825, 835.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P.J., MORRISON, J.
Defendant argues that Hamilton’s admission he was on parole would not suffice without extrinsic verification. He cites People v. Willis (2002) 28 Cal.4th 22 (Willis) as his only supporting authority for this novel duty to verify. Willis is more than inapposite, it is the polar opposite of this case.
In Willis the search was conducted without a warrant under the erroneous belief that the defendant was on parole and subject to a warrantless search condition. The officers conducting the search did extrinsically verify the parole status of the defendant, however, the extrinsic information was incorrect. (Willis, supra, 22 Cal.4th at pp. 26-27.) There is no basis in Willis, where the officers did verify but the defendant correctly denied he was on parole, for a duty to verify in this case, where Hamilton correctly admitted he was on parole.