Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. F04418, F05070.
CANTIL-SAKAUYE, J.
A jury convicted defendant Anthony Retamoza of three counts of sale of methamphetamine and one misdemeanor count of maintaining a place for the sale of methamphetamine. Defendant subsequently admitted on-bail allegations and was sentenced to eight years in prison.
On appeal, defendant contends an officer’s testimony about the contents of conversations between an informant and a third party was inadmissible hearsay which also violated his Sixth Amendment right to confrontation, and his upper term sentence violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm.
BACKGROUND
Count 1
In October 2004, an off duty highway patrol officer observed defendant, who was in an entrance to the Holiday Market parking lot, walk to a nearby pickup truck and enter the truck’s passenger side. The truck drove slowly through the parking lot before stopping by the exit to State Route 299.
The highway patrol officer was not available to testify at trial and, without objection, the transcript of his preliminary hearing testimony was read to the jury.
On the same day, defendant’s neighbors, H.L. and J.L., saw defendant walk towards the Holiday Market with one hand cupped, get into a pickup truck by the store, stay in the truck briefly, leave the truck, and walk home. J.L. observed defendant walk home and his hand was now open rather than cupped.
Wade Bennet, the driver of the pickup by the Holiday Market parking lot, testified to purchasing methamphetamine from defendant on that day. Having previously called defendant to set up the sale, Bennet drove to the market and bought two grams of methamphetamine from defendant for $160. He then drove home, where he was confronted by a law enforcement officer and arrested.
A search of Bennet’s truck discovered more methamphetamine, marijuana, syringes, and other paraphernalia. Bennet received a reduced sentence for testifying. Officers conducted a probation search at defendant’s residence, where they discovered an electric scale containing methamphetamine residue and $1,110 of cash in various denominations.
Counts 2 and 3
California Highway Patrol Officer Mike Poindexter made an arrangement with Dennis Jackson, where Jackson would participate in four controlled buys of narcotics in Modoc County in exchange for consideration on a pending probation violation. Jackson would find people who would sell him narcotics, arrange the transaction, and then buy the drugs with prerecorded money.
Before making the purchase, Jackson would be searched for drugs and would be made to wear a body wire. Officers would be observing Jackson throughout the operation and would listen to any conversation through the body wire. Once the purchase was complete, Jackson was to return immediately to a prearranged location and meet with the officers. If Jackson made four of these buys and testified in court, then the prosecution would not seek a six-year prison sentence for a pending probation violation.
Officer Poindexter testified regarding controlled buys made by Jackson on January 5, 2005, and January 26, 2005. On both days Jackson called Poindexter and informed him he had set up a buy. Both times Poindexter followed standard protocol by searching Jackson for drugs, wiring him, and giving him a prerecorded $50 bill. During the first buy, Jackson, while being followed by officers, went to the residence of Keith Heick, but left after being told to come back in 30 minutes. Jackson then returned to Heick’s place at the appointed time, again followed by officers.
Jackson went into Heick’s trailer and soon exited with Heick to Jackson’s car. Jackson drove Heick to defendant’s residence, where Heick went inside for a few minutes and returned to Jackson’s car. They drove to the Holiday Market, which Heick entered for a few minutes, and then drove back to Heick’s house, where Heick left Jackson’s car. When Jackson returned to the meeting place, he no longer had the $50 and gave Poindexter a small bag of methamphetamine.
On January 26, Jackson and Poindexter conducted a similar operation. Jackson went to Heick’s residence, picked up Heick, and drove to defendant’s house. Heick entered defendant’s residence and five minutes later came out with defendant, where the two talked before Heick got into Jackson’s car. Jackson drove Heick back to his trailer and went to the meeting place, where he no longer had the $50 but gave the officers methamphetamine.
Over defendant’s hearsay objection, Poindexter testified to conversations he overheard on the wire between Jackson and Heick during the January 5 buy. Poindexter testified that he heard Jackson ask Heick if he had “any crystal, any smoke.” When asked if he had heard Heick talking on the telephone, the officer stated he heard Jackson start to talk about something else and then Heick said, “Hey, let me talk to your dad,” and “Keith.”
According to Poindexter, he later saw Jackson’s car drive to defendant’s residence, where Heick entered defendant’s trailer for a few minutes and returned. When the car stopped, Poindexter heard Heick say, “You pay here.” According to the officer, the first thing he heard when Heick came back was Heick saying “here,” and Jackson say something like, “I’ll tell him next time that I’ll have to -- I will be able to kick something down for you, or something along that line next time, but since the first time, you know.”
Poindexter also heard Jackson ask Heick whether he was willing to trade any “shards,” a term for crystal methamphetamine, for tattoo work. The jury was instructed to only consider this testimony as circumstantial evidence that drug activity took place at defendant’s residence; it was not to consider the testimony for the truth of the matter asserted in the statements.
Heick testified for the defense. He did not remember purchasing drugs from defendant for Jackson. He admitted to having trouble with his memory and to hearing voices. He was taking drugs in prison which helped with the voices, but the voices had returned because he was no longer being given the drugs after leaving prison in order to testify.
DISCUSSION
I.
Defendant contends Officer Poindexter’s testimony about the conversations between Jackson and Heick was inadmissible hearsay. Although the testimony was inadmissible hearsay, it was also harmless error.
The trial court admitted Poindexter’s testimony regarding the conversations on the ground it was not hearsay because it was used as circumstantial evidence of drug dealing taking place at defendant’s house. The court based the ruling on a decision from Division Six of the Second Appellate District, People v. Nealy (1991) 228 Cal.App.3d 447 (Nealy).
In Nealy, an officer answered the telephone during the execution of a search warrant. (Nealy, supra, 228 Cal.App.3dat p. 450.) Over defendant’s hearsay objection, the trial court allowed the officer to testify that the caller asked for defendant by her first name and inquired about purchasing a “dove,” a slang term for a $20 piece of rock cocaine. (Ibid.) The officer also returned two phone calls to numbers left on a beeper, and in both cases, the people asked for defendant by her first name and asked for a “dove.” (Ibid.) The Nealy court held there was no hearsay violation because the testimony regarding the phone calls was not admitted for the truth of the matter asserted, but was admissible as circumstantial evidence. (Id. at p. 451.)
Nealy was applied to a similar setting in People v. Ventura (1991) 1 Cal.App.4th 1515 (Ventura). In Ventura, officers executing a search warrant on defendant’s apartment took telephone calls in which the callers asked to buy drugs. (Id. at pp. 1516-1517.) The Court of Appeal followed Nealy and held that testimony regarding the content of the calls was not hearsay, but circumstantial evidence that the residence was used to sell drugs. (Id. at pp. 1518-1519.) The Attorney General, relying on Nealy and Ventura, contends Poindexter’s testimony about the conversations he overheard on the wire was not hearsay as it was admitted as circumstantial evidence that defendant’s house was being used to sell methamphetamine rather than for the truth of the matters asserted in the conversations.
Defendant counters by arguing the holdings of Ventura and Nealy are “very narrow,” as in both cases it was clear drugs were in the defendant’s residence. According to defendant, the statements in Ventura proved the drugs were possessed for sale, while the statement in Nealy was relevant to prove ownership of the drugs. Defendant asserts there was no other evidence he possessed or sold drugs or possessed drugs in his residence on January 5 and January 26, 2005 and therefore “[n]o logical inference” can be drawn from the statements in Jackson’s car which implicates defendant in the sale of methamphetamine.
A panel of this court disagreed with the reasoning, but not the results of Nealy and Ventura in People v. Morgan (2005) 125 Cal.App.4th 935 (Morgan). Morgan addressed a similar set of facts: officers intercepted a telephone call made to the defendant in which the caller asked to buy narcotics. (Id. at p. 939.) We treated the implied assertion (that Morgan sold drugs to people) as a judicially created exception to the hearsay rule, rather than nonhearsay, based on its unintentional message being presumptively more reliable than a direct assertion. (Id. at p. 944.)
We believe Morgan states the better rule. An implied statement does not avoid the hearsay rule simply because it is used as circumstantial evidence. As we noted in Morgan: “While the ultimate fact the statement is offered to prove is not the matter stated, the truth of the implied statement is a necessary part of the inferential reasoning process.” (Morgan, supra, 125 Cal.App.4th at p. 943.) The same reasoning applies to the statements before us. In order for the statements overheard by Poindexter to be relevant as circumstantial evidence that defendant’s house was being used to sell methamphetamine, as argued by the prosecutor, the statements must themselves be true. Since the truth of the statements is necessary to their relevance, applying Morgan, we conclude they are hearsay.
In Morgan, we recognized conduct not intended as an assertion has long been viewed as more reliable than the standard hearsay statement. (Morgan, supra, 125 Cal.App.4th at p. 944.) The implied assertion in the phone calls (that Morgan sold drugs to people) was a form of conduct and therefore, since “actions speak louder than words, the caller’s statements were more reliable than the usual hearsay statement.” (Ibid.) Since the statements were inherently reliable, the statements were admissible under a judicially created exception to the hearsay rule. (Id. at pp. 945-946.)
We decline to extend the exception recognized in Morgan to the hearsay statements in the present case. Although actions speak louder than words, the “action” implied in the conversations that Poindexter overheard in Jackson’s car is comparatively quiet. In Morgan, Nealy, and Ventura, the implied statement was quite clear--by calling the defendant’s house for drugs, the caller was implicitly asserting either defendant possessed the drugs or possessed them for sale. (See Morgan, supra, 125 Cal.App.4th at p. 939; Ventura, supra, 1 Cal.App.4th at pp. 1518-1519; Nealy, supra, 228 Cal.App.3d at p. 450.) Heick’s cryptic comments “here,” and “You pay here,” may support an inference that the methamphetamine could not be sold until Heick was driven to defendant’s residence, entered the house, and came back to the car. However, these comments are too nebulous compared to the unsolicited calls asking to buy narcotics in Morgan, Nealy, and Ventura.
One factor supporting the reliability of the implied statement in Morgan was that it involved conduct in the form of a phone call. “To the extent conduct (here a phone call) rather than simply words are involved, the implied assertion is more reliable.” (Morgan, supra, 125 Cal.App.4th at p. 944.) Heick’s statements did not come in a phone call but were solicited by Jackson, a police informant looking at a substantial prison sentence if he did not complete four controlled buys of narcotics.
We recognize this is not the only reason the implied statement in Morgan was reliable. The statements in Morgan were also more reliable because the caller in Morgan did not intend to assert the defendant was selling methamphetamine; “rather, he was attempting to purchase methamphetamine.” (Morgan, supra, 125 Cal.App.4th at p. 944.) However, as we have already noted, the implied assertions in Heick’s statements are much weaker than the ones in Morgan, Nealy, or Ventura. Since the statements were not inherently reliable, their admission was error.
The same rationale applies to the other hearsay statements in Poindexter’s testimony. Heick’s statements “hey, let me talk to your dad” and “Keith” contained no assertion, either direct or implied, concerning whether methamphetamine was sold at defendant’s house. At most, it shows Heick called defendant’s house before arriving. Jackson’s statements, the product of an informant with considerable incentive to show that drugs were being sold, is of dubious reliability as well as presenting no implied or direct assertions about whether defendant was supplying the methamphetamine from his residence.
The error in admitting the hearsay statements was harmless under any standard, however, because there was no reasonable possibility defendant would have obtained a more favorable verdict had the testimony been excluded. Poindexter testified only regarding conversations during the January 5 sale. The jury convicted defendant of the count regarding the January 26 sale, even though there was no evidence regarding conversations between Jackson and Poindexter on that day.
As we have already noted, any implication that defendant was selling the methamphetamine from his house, based solely on the hearsay statements, was very weak. There was other, much stronger evidence from which the jury could infer drugs were sold from defendant’s house. H.L. and J.L.’s testimony, the scale with methamphetamine residue, and the $1,110 cash in various denominations found in defendant’s house all support the inference that defendant used his home as a base of operations for selling methamphetamine. This in turn supports the inference that Jackson drove with Heick to defendant’s house for both buys so that Heick could get the methamphetamine from defendant. Defendant’s appearance with Heick at his house during the January 26 buy further supports this conclusion.
Had the hearsay testimony not been admitted, we are convinced beyond a reasonable doubt that the jury would still have convicted defendant on all counts. The error was therefore harmless.
II.
Defendant also contends the hearsay statements violated his right to confrontation. While defendant objected to the evidence on hearsay grounds during the trial, he did not mention his right to confrontation until his new trial motion. A defendant’s right to confrontation is subject to “‘“the general rule”’--to which we find no exception here--‘“that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.”’ [Citations.]” (People v. Alvarez (1996) 14 Cal.4th 155, 186.) An objection delayed until a new trial motion is not timely, and is therefore not preserved on appeal.
Anticipating our ruling, defendant asserts counsel’s failure to make a timely confrontation clause objection constituted ineffective assistance. In order to establish ineffective assistance, the defendant must show both inadequate performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [80 L.Ed.2d 674, 693, 698].) As we have already noted, any error in admitting the testimony was harmless beyond a reasonable doubt. Since defendant was not prejudiced by the failure to raise a Confrontation Clause objection, he did not receive ineffective assistance of counsel.
III.
Defendant contends the imposition of an upper term sentence violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We reject the contention under the recently decided People v. Black (2007) 41 Cal.4th 799 (Black II).
Apprendi 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. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) 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; thus, when a court’s authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
In Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], 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.” (Ibid., overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (2007) 549 U.S. ___ [167 L.Ed.2d 36].) However, as pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment jury-trial guarantee does not apply to prior convictions that are used to impose greater punishment. (E.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
In Black II, the California Supreme Court applied the Apprendi-Blakely line of cases, as interpreted in Cunningham, to California’s determinate sentencing law. It concluded: “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.)
The trial court designated one of the sale of methamphetamine counts as the principal offense and sentenced defendant to the upper term of four years. In imposing the upper term, the trial court found defendant’s drug addiction as a mitigating factor, and found three aggravating factors, the manner in which the crime was committed indicated planning, sophistication, and professionalism, defendant’s prior convictions were “numerous and of increasing seriousness,” and defendant had served prior prison terms.
The trial court’s reliance on defendant’s prior convictions rendered him eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at p. 818.) The Black II court also counseled that the prior conviction exception to Apprendi is not to be read “too narrowly.” (Id. at p. 819.) Numerous cases have interpreted this exception “to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Ibid.)
Whether defendant’s prior convictions were “numerous or of increasing seriousness” (see Cal. Rules of Court, rule 4.421(b)(2)), is one example of a factor that comes within the recidivism exception to Apprendi. (Black II, supra, 41 Cal.4th at pp. 819-820.) Defendant’s prior prison terms also comes within this exception, as it too may be determined by examining defendant’s criminal record.
The trial court’s reliance on defendant’s prior convictions and prison terms rendered him eligible for the upper term based on facts which do not entitle defendant to the right to a jury trial. Applying Black II, we conclude that the trial court’s reliance on the additional factor of the circumstances of the crime did not violate the rule of Apprendi.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., RAYE, J.