Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-485702
Sepulveda, J.
Defendant was found guilty of receiving stolen property and admitted an allegation of a prior prison conviction. On appeal he contends that the court improperly prohibited testimony regarding his prior alcohol blackouts, improperly instructed the jury regarding voluntary intoxication, and sentenced him to an aggravated term in violation of the principles enunciated in Cunningham v. California (2007) 549 U.S. ___, [127 S.Ct. 856, 868-871] (Cunningham). We find no error and affirm.
I. Background
Two women left their purses in a seating area at a club named Infusions, which is located in Petaluma. A man who was with them left his camera there as well. All three items were later noticed to be missing. One of the women used a borrowed cell phone to call her own cell phone, which was in her purse. Through that contact, the victims were able to ascertain that defendant had at least some of the missing property, and made arrangements to get back one of the purses in exchange for $100. At first, defendant claimed to have only a few of the missing items and claimed he found them on the street. Defendant later allowed part of the group trying to recover the property into his hotel room where they observed the camera and items from the other missing purse. Defendant showed the individuals other of the missing items in a janitor’s closet in the hotel. Defendant later threw the second missing purse out of the window of his hotel room. The police were called and later discovered other missing items on defendant’s bed and in the janitor’s closet. Some witnesses, including one police officer, noticed that defendant exhibited signs of being intoxicated, including an odor of alcohol on his person, red, bloodshot, and watery eyes, slurred and deliberate speech, and that he was unsteady on his feet. They observed a six-pack of beer on the floor of defendant’s room, with one bottle missing. Defendant had a bottle of beer inside his jacket. Defendant’s booking sheet did not indicate, however, that he was intoxicated.
Defendant was charged with receiving stolen property (Pen. Code, § 496, subd. (a)); it was also alleged that he suffered a prior prison conviction (Pen. Code, § 667.5, subd. (b)). He was convicted by jury of receiving stolen property and admitted the prior conviction. He was sentenced to the aggravated term of three years in state prison; the court also imposed one year for the prison prior, for an aggregate term of four years in state prison. This timely appeal followed.
II. Discussion
A. Defendant’s Out-of-Court Statement Was Properly Excluded.
During defendant’s cross-examination of Bobby Layman (a friend of defendant’s and the manager of the hotel where defendant was staying), the court sustained the prosecution’s hearsay objection to the following question: “Has Mr. Schnee ever told you about events that he doesn’t remember?” The witness replied, “Yes.” This question followed a line of questions by defense counsel regarding Layman’s knowledge of defendant’s drinking problem. Defendant contends that the trial court’s ruling on this objection was error, as the statement was admissible under the state of mind exception to the hearsay rule (Evid. Code, § 1250), and that this improper exclusion was prejudicial and violated his federal and state constitutional rights. We disagree.
Apparently there had been an in limine motion regarding this testimony, which the trial court had not yet ruled upon.
Evidence Code section 1250 provides in pertinent part that, “evidence of a statement of the declarant’s then existing state of mind . . . is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind . . . at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250, subd. (a).) In order for a hearsay statement to be admissible under this exception it must be a statement of the hearsay declarant’s “then existing state of mind.” (Ibid.) In the present case, defense counsel asked the witness whether the defendant “ever told [him] about events that he doesn’t remember?” The witness’s reply of “[y]es” (that defendant had told him about events that defendant did not remember) was not a statement of defendant’s then existing state of mind. The statement says nothing at all about defendant’s state of mind at the time the hearsay declaration was made.
The hearsay statement was, rather, a statement of defendant’s memory or belief (defendant’s belief that events had occurred at some time in the past that he did not remember), which is strictly excluded from the hearsay exception under Evidence Code section 1250, subdivision (b), which states, “This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” The statement in question here indicated that defendant believed that events had occurred in the past that he did not remember, and was being offered to prove the truth of the matter asserted—that defendant had suffered such memory lapses. For that reason the statement is hearsay (which defendant does not contest on appeal); for the same reason Evidence Code section 1250, subdivision (b) prohibits its admission under the state of mind exception to the hearsay rule set forth that section.
Further, there was no foundation established as to when defendant made these declarations to the witness, when the past memory lapses had occurred, or whether they were connected to alcohol abuse. Thus there was no foundation that defendant’s lack of memory of events at some time in the past was even relevant to defendant’s state of mind at a time that his state of mind was at issue in the action (i.e., at the time of the charged offense), as also required by Evidence Code section 1250.
Defendant argues that the statement was admissible to explain the conduct of defendant at the time of the current offense, but without further foundation as to when the statement(s) were made by defendant to the witness, or what they related to, this potential relevance also was not established. Defendant further argues, in his reply brief, that the hearsay statement demonstrates defendant’s state of mind at the time he made the statement to the witness, which was relevant as it tended to demonstrate that he suffered from alcoholic blackouts. Even if we were inclined to consider a position proffered for the first time in his reply brief (see People v. Speegle (1997) 53 Cal.App.4th 1405, 1418, fn. 8 [point raised for first time in reply brief will not be considered unless good reason is shown for failure to present it earlier]), we would find defendant’s position unavailing. That defendant told someone, at some unidentified point in the past, about events that had (at some other unidentified point in the past) occurred that defendant did not remember does not, without further foundation, tend to prove that defendant suffered from alcoholic blackouts.
We, of course, review the trial court’s evidentiary rulings under an abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) On the record developed below, we find no such abuse here.
Even if we were to find error in the trial court’s ruling, it was not reversible under either the People v. Watson (1956) 46 Cal.2d 818, 836 [reasonably probable that a result more favorable to defendant would have been reached absent error] or Chapman v. California (1967) 386 U.S. 18 [it cannot be said beyond a reasonable doubt that the error did not contribute to the verdict] standard of review. Defendant was able to otherwise fully explore his proffered defense that he was so drunk did not have the required knowledge that the property was stolen. Layman, the witness from whom the above hearsay was solicited, testified that defendant told him he did not remember anything about the events at the hotel on the night in question; all he remembered was getting ready to go out to eat. The next thing defendant remembered was waking up in jail. Layman also testified that defendant had told him he had a problem with alcohol. However, as the evidence otherwise demonstrated, while defendant exhibited signs of being under the influence at the time of the offense, he was fully able to negotiate the return of part of the stolen property in return for payment of $100, talk to various individuals about the offense, and hide part of the property. The evidence was thus overwhelming that he was not so drunk as to lack the knowledge that the property was stolen.
B. The Trial Court Properly Instructed on Voluntary Intoxication.
The trial court instructed with CALCRIM No. 3426, which indicates in pertinent part that, “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with . . . ‘the intent to do the act required.’ [¶] . . . [¶] You may not consider evidence of voluntary intoxication for any other purpose.” The instruction went on to emphasize that the prosecution had the burden of proving beyond a reasonable doubt that defendant had knowledge that the property was stolen. Defendant claims that this instruction improperly suggested that consideration of evidence of defendant’s intoxication was optional by the jurors, due to the language that they “may consider” such evidence.
First, defendant did not object to the wording of this instruction and thus did not preserve the issue for appeal. (People v. Northrop (1982) 132 Cal.App.3d 1027, 1039, disapproved of on other grounds in People v. Smith (1984) 35 Cal.3d 798, 808.) Even if the issue were cognizable on appeal, however, we find defendant’s argument to be without merit. The instruction does not in any way suggest that the jury was free to ignore evidence of defendant’s intoxication; it merely advised the jury that the evidence of intoxication could be considered only for a limited purpose. Other instructions given to the jury informed them that they should consider all the evidence presented. (CALCRIM No. 220 [“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial”].)
C. Defendant Was Properly Sentenced to the Aggravated Term.
In his opening brief, defendant argued that the trial court’s imposition of the aggravated term violated the principles set forth in Cunningham, supra, 549 U.S. ___, [127 S.Ct. 856] as the trial court relied upon aggravated factors not proven to the jury beyond a reasonable doubt, in violation of defendant’s Sixth and Fourteenth Amendment rights. As defendant notes in his reply brief, however, the California Supreme Court has ruled to the contrary in People v. Black (2007) 41 Cal.4th 799 (Black II). Defendant contends that the reasoning of Black II is faulty, though he recognizes that we are bound by it under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. He persists in his position in order to preserve the issue for further federal review.
In the present case the trial court relied upon several factors in imposing the aggravated term, including defendant’s prior record of convictions forming a pattern of regular criminal conduct, his poor prior performance on probation and parole, his being on parole at the time of the current offense, his adult convictions being numerous, and his having served a prior prison term. The court in Black II held that imposition of the upper term does not violate a defendant’s right to a jury trial where “at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made [defendant] eligible for the upper term.” (Black II, supra, 41 Cal.4th at pp. 805-806.) The court further clarified that the Sixth Amendment does not apply to the fact that prior convictions occurred, or “other related issues that may be determined by examining the records of prior convictions.” (Id. at p. 819 & fn. 8.) As the court explained, “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. . . . This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation].” (Black II, supra, 41 Cal.4th at pp. 819-820.)
This case is indistinguishable from Black II. Information before the trial court established that defendant’s prior convictions were numerous and formed a pattern of regular criminal conduct, and that he had served a prior prison term. Defendant’s prior poor performance on probation and parole was also established and, as a post-Cunningham case recently concluded, this circumstance is also “recidivism related” and justifies the imposition of an upper term without its proof to a jury. (People v. Yim (2007) 152 Cal.App.4th 366, 371.) Additionally, defendant was on parole at the time of the charged offense, another factor which “can be determined by reference to ‘court records’ pertaining to [defendant’s] prior convictions, sentences and paroles,” and thus need not be proven to a jury. (Ibid.) Each of these factors made defendant eligible for the upper term and the trial court properly imposed such term upon defendant.
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.