Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA047888, Martin Herscovitz, Judge.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Lawrence M. Daniels and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted Alejandro Benitez of the attempted kidnappings of Marta Ramirez and Lesbia Hernandez and assaults with a firearm against the same two victims. He challenges his convictions and his sentence. We affirm.
FACTS AND PROCEEDINGS BELOW
Marta Ramirez testified as follows.
At approximately 9:15 in the evening Ramirez and Hernandez arrived at the security gate to the parking lot of their apartment building. Hernandez was driving; Ramirez was sitting in the front passenger seat. When Hernandez stopped in front of the gate defendant approached on the driver’s side with a gun in his hand. He pointed the gun inside the car and said, “Don’t move, this is a kidnapping.” Another man, Giovanni, approached the car on the passenger side. Giovanni was also pointing a gun.
Ramirez opened her car door “really hard,” knocking Giovanni to the ground. She got out of the car and ran down the street screaming for help. As she did so she was almost run over by a green van. She had seen this van before on several occasions and believed the men in it had been following her for several days. On one occasion when she spotted the van she wrote down its license number and had the number with her on the night of the attempted kidnapping.
When officers Guerrero and Adair arrived at the scene Ramirez and Hernandez told the two officers what happened and Ramirez gave the police a description of the van and its license number.
The police located the green van early the next morning approximately a half mile from the victims’ apartment building. Inside they found a gun, ammunition, a black jacket with the word “Police” on the back, handcuffs and a rope.
On cross-examination Ramirez denied telling Officer Guerrero that Hernandez had gotten out of the car before defendant appeared on the scene. She also denied telling Guerrero she, not Hernandez, had been the one driving the car. Ramirez further denied telling Guerrero that Giovanni was the only person who approached the car and it was he, not defendant, who said: “This is a kidnapping.”
Hernandez did not testify at the trial or at the preliminary hearing.
Defendant called Officer Guerrero as a defense witness to impeach Ramirez’s testimony. Guerrero testified he was certain Ramirez told him that when she and Hernandez arrived at the parking gate Hernandez got out of the car on the passenger side to enter the security code. He also specifically remembered Ramirez telling him she was sitting in the driver’s seat of the car and Hernandez was outside when Giovanni approached, alone, and said: “Don’t move, this is a kidnapping.”
To impeach Guerrero’s testimony regarding Ramirez’s statements at the scene the prosecutor got him to admit he made several errors in writing his report of the incident. Guerrero admitted he made an error in dating the report. He also admitted his report stated Ramirez made her escape through the passenger door rather than through the driver’s door as he testified on direct examination. Guerrero conceded his report states both victims “were in the vehicle” when “suspect 1 [identified in the report as Giovanni, not defendant] walked up to the car.” Finally, Guerrero acknowledged the part of his report stating Hernandez was outside the car when “suspect 1” approached was added to the report after he read the report to Ramirez and she signed it. Ramirez never saw or agreed to the accuracy of this part of the report.
On redirect examination defendant proposed to introduce Guerrero’s testimony that when he interviewed Hernandez at the scene she gave the same version of events as Ramirez—she had gotten out of the car on the passenger side to open the security gate before Giovanni approached the car. In response to the prosecutor’s hearsay objection defendant argued he was not offering Hernandez’s statement to Guerrero as proof she had left the vehicle before the attempted kidnapping. Rather, he was offering the testimony to show Guerrero had accurately taken down Ramirez’s statement about Hernandez leaving the vehicle by showing Hernandez had made the same statement. The trial court excluded the evidence of Hernandez’s statement under Evidence Code section 352.
The jury convicted defendant on two counts of attempted kidnapping and two counts of assault with a firearm. The jury also found true the allegations defendant personally used a firearm during the commission of the charged offenses.
Using count one of the information as the base term (attempted kidnapping of Ramirez) the trial court sentenced defendant to the upper term of four years plus a consecutive 10 years for the gun enhancement. The court imposed the same sentence as to count three (attempted kidnapping of Hernandez) and ordered it to run concurrently with count one. The sentences on counts two and four (assaults with a firearm on Ramirez and Hernandez) were stayed.
Defendant filed a timely notice of appeal.
DISCUSSION
I. THE TRIAL COURT PROPERTY EXCLUDED GUERRERO’S TESTIMONY RELATING THE STATEMENT MADE TO HIM.
At trial defense counsel conceded the statement Hernandez allegedly made to Guerrero would be inadmissible hearsay if offered to prove the truth of the statement, i.e., Hernandez had gotten out of the car to punch in the security code for the gate when defendant approached the car, pointed a gun at Ramirez and stated: “This is a kidnapping.” The hearsay issue is not raised on appeal.
Defense counsel apparently concluded Hernandez’s alleged statement to Guerrero was too remote in time to qualify as an “excited utterance” under Evidence Code section 1240. (See People v. Poggi (1988) 45 Cal.3d 306, 318.) We see nothing in the record to establish counsel’s conclusion was unreasonable.
Defendant asserts, as he did in the trial court, Hernandez’s statement to Guerrero was admissible for the nonhearsay purpose of rehabilitating Guerrero’s credibility as a witness. We summarize his argument below.
On direct examination Ramirez testified she and Hernandez were sitting in their car at the parking gate of their apartment building when defendant and Giovanni approached each side of the car and defendant stated: “Don’t move. This is a kidnapping.” Guerrero testified this is not what Ramirez told him when he interviewed her approximately 10 to 15 minutes after the incident. According to Guerrero’s testimony Ramirez told him after she and Hernandez stopped at the parking gate Hernandez, who had been in the passenger seat, got out of the car to enter the code to open the gate. While Hernandez was doing this Giovanni alone approached Ramirez on the driver’s side, pointed a gun at her and announced this was a kidnapping. Guerrero testified he accurately recorded Ramirez’s statement in his report. In order to impeach Guerrero’s testimony the prosecutor obtained his admission he had made several factual errors in writing his report of the incident thereby suggesting to the jury Guerrero’s report and his trial testimony were inaccurate in relating Ramirez’s statements about Hernandez being out of the car when the attempted kidnapping occurred and Giovanni being the only person who approached the car. Defendant reasons if the jury had learned Hernandez confirmed to Guerrero she was out of the car when the incident took place Guerrero’s credibility would have been strengthened and Ramirez’s credibility weakened.
Excluding Guerrero’s testimony regarding Hernandez’s statements was prejudicial, defendant argues. If the jury believed Hernandez was not in the car when the attempted kidnapping occurred it is reasonably probable the jury would have concluded Hernandez was a bystander, not a victim, and acquitted defendant at least on counts three and four (attempted kidnapping and assault on Hernandez). We are not persuaded.
The trial court excluded Guerrero’s proffered testimony under Evidence Code section 352 on the ground it would “create a lot more ambiguity.” The court did, however, allow Guerrero to testify he talked to Hernandez the night of the incident.
A trial court’s decision to exclude evidence under section 352 is reviewed for abuse of discretion. The court’s ruling therefore will be affirmed on appeal “unless it falls outside the bounds of reason.” In this case the trial court’s ruling was well within bounds.
People v. Cole (2004) 33 Cal.4th 1158, 1195.
People v. DeSantis (1992) 2 Cal.4th 1198, 1226.
Evidence may be excluded under section 352 “if its probative value is substantially outweighed by the probability that its admission will . . . (b) create substantial danger of . . . confusing the issues, or of misleading the jury.” The trial court could reasonably conclude Guerrero’s testimony would do both.
Even if Guerrero’s testimony was not admitted to prove Hernandez was outside the car when the defendant approached it there was a substantial danger the jury would treat the testimony as evidence of this fact. Defendant contends the trial court could have avoided a misuse of the evidence by giving the jury a limiting instruction which, it must be presumed, the jury would understand and follow. However, the issue here is not whether the trial court could have done something different but whether it abused its discretion in doing what it did. We believe whether the trial court abused its discretion in excluding evidence under section 352, rather than giving a limiting instruction, depends on the importance to the defendant of the excluded evidence.
Compare People v. Jablonski (2006) 37 Cal.4th 774, 834.
See People v. Reeder (1978) 82 Cal.App.3d 543, 557 (conc. opn. of Kingsley, J.).
Here the probative value of Hernandez’s alleged statement was minimal with respect to Guerrero’s credibility because the evidence of the statement would have come from Guerrero, the very person whose credibility was in doubt. If the prosecutor’s cross-examination of Guerrero created doubt about his credibility in the jurors’ minds when he testified to Ramirez’s statement we see no reason why they would find him more credible when he testified to Hernandez’s similar statement. Furthermore, the version of events Guerrero testified he received from Ramirez and Hernandez at the scene is so unlikely compared to Ramirez’s testimony at trial it is not reasonably probable the jury would have accepted Guerrero’s testimony and rejected the testimony of Ramirez. It is highly improbable Hernandez got out of the car on the passenger side, walked around the car and stood next to the driver’s side punching in the security code for the parking gate while a gunman, totally ignoring her, stood next to her and pointed a gun at Ramirez sitting in the driver’s seat of the car and that despite the gunman, Hernandez and the security box being all bunched around the driver’s side door Ramirez was able to kick the door open hard enough to knock down her assailant.
In sum, the evidence the trial court excluded was of little probative value on the issue of Guerrero’s credibility and it is not reasonably probable its introduction would have led to a verdict more favorable to defendant.
II. THE TRIAL COURT’S SENTENCING DECISION DID NOT VIOLATE THE DEFENDANT’S SIXTH AMENDMENT RIGHT AS INTERPRETED BY OUR SUPREME COURT.
Defendant contends the trial court imposed the upper terms and consecutive sentences based on facts which were not found by the jury nor admitted by him in violation of his Sixth Amendment right to a jury trial. As stated by the trial court, those aggravating factors were as follows:
See Blakely v. Washington (2004) 542 U.S. 296.
“One, [the defendant has] been convicted of numerous misdemeanor offenses. That indicates, coupled with this case, increased seriousness and danger to society.
“Number two, the fact that concurrent sentencing is being imposed on count 3, for which consecutive sentencing could be imposed, because it was a separate victim.
“Three, his past performance on parole was unsatisfactory.
“Those factors alone would be sufficient to support the high term. However the Court would also cite one additional fourth factor: That the defendant had a leadership role in this attempted kidnapping as conducted by at least three, possibly four individuals.
“But the first three aggravating circumstances would stand alone, notwithstanding the fourth one, which has to do with facts of this case.
“There are no factors in mitigation.”
While not all members of this court are convinced the California Supreme Court correctly interpreted the U.S. Supreme Court’s Cunningham opinion when it rendered its own decision in People v. Black on July 19, 2007, we are united in our conviction this court is required to follow that decision from our state’s highest court. Among other things, the California Supreme Court held an upper term sentence can be upheld if even one of the available aggravating factors, such as a prior conviction, complied with Cunningham. Furthermore, our high court held recidivism factors beyond the bare fact of conviction could be found by the judge rather than a jury without offending Cunningham, if those facts “may be determined by examining the records of the prior convictions.”
Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856].
People v. Black (2007) 41 Cal.4th 799 (Black II).
Black II, supra, 41 Cal.4th at page 813.
Black II, supra, 41 Cal.4th at pages 819-820.
The trial court in this case provided nearly a textbook example of how to structure a sentencing statement justifying a high term sentence when employing both recidivism factors and factors related to the circumstances of the crime or the character of the defendant. Except for the second factor cited, based on the questionable grounds the court had abstained from imposing a consecutive sentence when it could have, the court placed principal reliance on the recidivism factors -- numerous prior convictions (albeit for misdemeanors) of increasing seriousness and poor performance on parole. While the court also cited appellant’s “leadership role” in the commission of this crime, the judge made it abundantly clear, more than once, he would have imposed the high term even in the absence of that aggravating factor.
Under the California Supreme Court’s decision in Black II, a judge rather than a jury is constitutionally empowered to determine both of the aggravating factors related to appellant’s prior convictions. Furthermore, under that decision, the presence of either one of those aggravating factors would be enough to make appellant “eligible” for an upper term sentence. This, in itself, would be enough to render these upper term sentences constitutional under Black II. But in this case the trial court made it clear the factor Cunningham definitely required be submitted to a jury—that is, appellant’s purported leadership role in the crime—was not essential to its decision to impose the high term. Consequently, only the California Supreme Court’s broad reading of the “prior conviction” exception to the Cunningham jury trial requirement is needed in order for this court to approve what the trial court did in this case.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN IMPOSING THE UPPER TERMS.
The trial court imposed the upper terms on counts one and two (attempted kidnapping and assault with a firearm on Ramirez). The court imposed the same sentence as to counts three and four (attempted kidnapping and assault with a firearm on Hernandez), but ordered the latter sentence to run concurrently with the sentence on counts one and two. The following aggravating factors were cited by the court as justifying the upper terms: defendant had previously been convicted of increasingly serious crimes; his performance on probation was unsatisfactory; and he had taken a leadership role in the attempted kidnapping. The court also noted it was imposing concurrent sentences as to the crimes against Hernandez when it could have imposed consecutive sentences.
Beyond his constitutional arguments predicated on Cunningham, appellant maintains the trial court abused its discretion in imposing the upper terms because the finding he played a leadership role in the attempted kidnapping was not supported by a preponderance of the evidence, his past criminal history involved only misdemeanors, and it is reasonably probable the court would not have imposed the upper terms if they were justified solely by the imposition of concurrent sentences as to the Hernandez crimes.
We review the trial court’s decision to impose an upper term for abuse of discretion. Discretion is abused if the sentencing decision is arbitrary or irrational; otherwise “the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” No abuse of discretion appears here.
People v. Scott (1994) 9 Cal.4th 331, 349.
People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.
In the absence of a constitutional infirmity in one or more of the sentencing factors, one aggravating factor is sufficient to justify the upper term unless there is a reasonable probability the trial court would not have imposed the upper term without considering an illegitimate factor. Here the trial court specifically stated it would impose the upper term even if it did not consider the “leadership” factor.
People v. Osband (1996) 13 Cal.4th 622, 728-729.
We find no merit in defendant’s claim the trial court abused its discretion in considering defendant’s previous misdemeanor convictions including convictions for vandalism, theft and battery or his poor performance on probation for those crimes. The Rules of Court do not limit the trial court to considering only felony convictions, and criminal records consisting solely of misdemeanor convictions have been held to justify imposing an upper term. Because the trial court could legitimately consider defendant’s misdemeanor convictions and his subsequent probation performance we have no need to speculate whether the court would have imposed an upper term only because it was imposing concurrent sentences as to the Hernandez crimes.
See for example People v. Searle (1989) 213 Cal.App.3d 1091, 1098.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.