Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Richard Oberholzer, Judge. (Super. Ct. No. BF115529A)
So’Hum Law Center, and Richard Jay Moller, 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, Julie A. Hokans and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Eddie Lynn Peterson, Sr. (Peterson), appeals his conviction and sentence for drug possession with intent to sell. He contends that the trial court erred in admitting hearsay evidence, or alternatively, that his trial counsel provided ineffective assistance of counsel in failing to raise a specific objection to the hearsay evidence. Peterson also contends that his sentence to the upper term was unconstitutional. For the following reasons, we affirm.
STATEMENT OF THE CASE
On August 23, 2006, the Kern County District Attorney’s Office filed a single count information charging Peterson with felony possession for sale of cocaine base, in violation of Health and Safety Code section 11351.5. The information further alleged several enhancements based on prior convictions: (1) a prior serious felony (second degree robbery) within the meaning of Penal Code sections 667, subdivisions (c) through (j), and 1170.12, subdivisions (a) through (e); and (2) two prior drug crimes (possession for sale of cocaine base), within the meaning of Health and Safety Code section 11370.2, subdivision (a). The information also alleged that Peterson had suffered three prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b). On August 24, 2006, Peterson entered a plea of not guilty to the charge and denied all of the special allegations.
On October 19, 2006, the jury was sworn, and trial began in this matter on the drug charge. The trial was a joint trial with Peterson’s co-defendant, Antowette Gonzales. On October 23, 2006, the jury found Peterson and Gonzales guilty of possession for sale of cocaine base. That same day, a bifurcated jury trial was held regarding the special allegations in the information. The jury found all of the allegations to be true.
On December 5, 2006, the court sentenced Peterson to state prison for the aggregate term of 19 years, computed as follows: the upper term of 10 years for possession for sale of cocaine base conviction, plus six years (three years each) for the two enhancements under Health and Safety Code section 11370.2, and three years (one year each) for the three enhancements under Penal Code section 667.5, subdivision (b).
On December 6, 2006, Peterson timely filed a notice of appeal.
FACTS
I.
Prosecution Case
On March 10, 2006, Officer Patrick Mara, a member of the Bakersfield Police Department’s special enforcement unit, was on a stakeout of a motel in a high narcotics activity area when he noticed a Black male pull up in a white Cadillac, enter room 108 of the Little Sweden Motel, exit the room a short time later, and drive away. Officer Mara viewed this as consistent with narcotics activity so he radioed other officers in his unit.
The Black male was stopped and searched, and he was found to possess off-white pieces of a chunky substance which were consistent with cocaine base.
Based upon this information, Officer Mara and other officers went to room 108 of the Little Sweden Motel where they apprehended Peterson and his companion, Antowette Gonzales. The officers searched the room and found a plastic baggie containing suspected cocaine base on top of a black purse that was inside a larger white purse next to the bed. They also found a cell phone and $173 in small denominations in Peterson’s right front pant pocket. The pieces of suspected cocaine base in the baggie were individually packaged into 16 smaller baggies, and a small amount of marijuana was also in the large baggie. The total package weight was just over 17 grams. Additionally, according to Officer Mara, the cellphone rang continuously once or twice every 30 seconds during the 30 or so minutes the officers were in the motel room.
Gonzales told the officers that the black purse under the baggie of drugs was hers, but that she did not know anything about drugs and she had just been a visitor to the motel room. Officer Mara met with the owner of the motel and received a copy of the registration card for the room which showed that Peterson and Gonzales were both listed on the card.
II.
Defense Case
Peterson’s brother testified for the defense. According to Peterson’s brother, he gave Peterson a ride to the motel at about 1:30 am. because Peterson was going to meet a woman there to have sex. Peterson’s brother was supposed to pick him up 45 minutes later. However, when Peterson’s brother did not hear back from Peterson, he called Peterson’s cellphone continuously trying to reach him. Peterson also contended that the drugs belonged to someone else.
DISCUSSION
I.
Confrontation Clause of the Sixth Amendment
Peterson contends that the trial court violated his rights under the Confrontation Clause of the Sixth Amendment of the federal Constitution when it allowed the jury to hear evidence of statements made by Gonzales to the police that allegedly incriminated him. The People argue that Peterson has forfeited this issue by failing to raise it in the trial court below. We agree.
During the trial, Officer Mara was asked who owned the black purse found in the hotel room. Officer Mara stated that he spoke with Gonzales about the purse after advising her of her Miranda rights. Officer Mara then testified that Gonzales told him that the black purse that was inside the large white purse belonged to her. Officer Mara also testified that Gonzales told him that she did not know anything about the drugs that were found on top of the black purse. The prosecutor then asked: “Did she tell you what she had been doing in the room?” Officer Mara then testified: “She told me that she had stopped by to –” At this point, defense counsel objected on the basis of hearsay. The prosecutor argued that there was an exception to the hearsay because it was an admission against interest or a statement by a party opponent. The trial court sustained the objection. Office Mara then testified: “She told me that she had stopped by the room to clean up and take a shower.” The prosecutor then asked: “Did she say if it was her room or if she was a visitor?” Officer Mara testified: “She said she was a visitor.” Gonzales, a co-defendant in the case, did not testify at trial.
Miranda v. Arizona (1966) 384 U.S. 436
Peterson contends that the admission of Gonzales’s statements that “she had stopped by the room to clean up and take a shower” and that she was a visitor violated his rights under the Confrontation Clause and was erroneous pursuant to People v. Aranda (1965) 63 Cal.2d 518, 528-530 and Bruton v. United States (1968) 391 U.S. 123, 126-127 (hereinafter Aranda-Bruton) because Peterson was not able to confront and cross-examine Gonzales at trial. In People v. Hill (1992) 3 Cal.4th 959, 994-995, overruled in part on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, however, the California Supreme Court held that a defendant’s claim based on alleged Aranda-Bruton error was forfeited because the defendant had failed to raise the same objection at trial. Thus, because Aranda-Bruton error was not raised in the trial court below, Peterson has forfeited that claim.
Peterson contends, however, that People v. Partida (2005) 37 Cal.4th 428, 433-439 (Partida), permits appellate review of his claim based on Aranda-Bruton error. In Partida, the defendant objected to the introduction of gang evidence at trial under Evidence Code section 352, but the objection was overruled. (Partida, supra, at pp. 432-433.) On appeal, defendant argued for the first time that the trial court’s decision overruling his Evidence Code section 352 objection violated his due process rights. (Partida, supra, at pp. 432-433.) The California Supreme Court held that the defendant’s due process claim was not subject to waiver because it was based upon the same analysis that is used to determine Evidence Code section 352 objections. (Id. at p. 435.) However, the Supreme Court noted that a defendant on appeal “may not argue that the court should have excluded the evidence for a reason different from his trial objection.” (Ibid.)
Here, Peterson had objected to the admission of the statements under a general hearsay objection and the trial court had analyzed the objection by finding an exception to the general hearsay rule. That analysis is different from an analysis of an objection under Aranda-Bruton, which, for example, requires the trial court to determine whether the statements incriminate Peterson. Thus, the exception to waiver articulated in Partida does not apply in this case.
II.
Ineffective Assistance of Counsel
Peterson alternatively contends that his trial counsel provided ineffective assistance by failing to raise an Aranda-Bruton argument in the trial court. In order to prevail on a claim for ineffective assistance of counsel, Peterson must make two showings. First, he must show that counsel’s representation fell below an objective standard for reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-88; People v. Gray (2006) 37 Cal.4th 168, 206-207.) Second, Peterson must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Kelly (1992) 1 Cal.4th 495, 519-520.)
Even if there was an Aranda-Bruton error, Peterson cannot show a reasonable probability that the result would have been more favorable for him. The two statements did not undermine Peterson’s defense that the drugs belonged to Gonzales because, even if Gonzales’s statements were believed by the jury, the jury still could have concluded that the drugs belonged to Gonzales. A jury finding that the drugs belonged to Gonzales would have been supported by Gonzales’s statement that the black purse under the baggie containing the drugs belonged to her. Moreover, the two statements at issue are not inconsistent with Peterson’s defense that he was in the room to have sex with Gonzales since Gonzales did not state that the only reason she visited the room was to clean up and shower. Finally, the jury verdict against Gonzales, which was supported by other evidence such as the hotel registration card showing that the room belonged to Peterson and Gonzales, indicates that the jury did not believe Gonzales’s testimony. Thus, there is no reasonable probability that the two statements affected the jury verdict against Peterson.
III.
Upper Term Sentence
Finally, Peterson contends that the trial court erred by imposing an upper term for his drug possession conviction under Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We disagree.
In Cunningham, the United States Supreme Court held that California’s Determinate Sentencing Law “violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].)
In People v. Black (2007) 41 Cal.4th 799, 816 (Black II), the California Supreme Court held that the “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.” According to the California Supreme Court, a defendant’s prior convictions can be found true by a judge by a preponderance of the evidence, and a defendant’s criminal history can be an aggravating circumstance that independently satisfies the Sixth Amendment of the federal Constitution and renders the defendant eligible for the upper term. (Black II, 41 Cal.4th at pp. 818-820, & fn.9.)
Here, the trial court imposed an upper term of 10 years on the drug charge. At the sentencing hearing, the trial court made the following findings: “The Court finds that there are no circumstances in mitigation. [¶ ] In aggravation, [Peterson’s] prior conviction[s] as an adult and sustained petitions in juvenile delinquency proceedings are numerous, in that he served two prior California Youth Authority commitments, as well as two additional prior prison terms; [Peterson] was on state parole when the crime was committed; and [Peterson’s] prior performance on juvenile probation, CYA parole, misdemeanor probation, deferred entry of judgment, and state parole was unsatisfactory, in that he failed to appear at court hearings, failed to abide by the terms, and failed to appear for a jail commitments [sic] and continues to reoffend.”
The trial court’s findings are supported by the substantial evidence contained in the probation report. (See Black II, supra, 41Cal.4th at p. 818, fn. 7].) Based upon those findings, the trial court could conclude that Peterson’s recidivism renders him eligible for the upper term. Thus, Peterson’s subsequent upper term sentence was constitutional.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, J. Wiseman, J.