Opinion
NOT DESIGNATED FOR PUBLICATION
Super. Ct. No. NCR67559
SIMS , J.Defendant Buck Edward Boswell appeals following his conviction for drug offenses. Defendant contends (1) a search warrant was invalid; (2) he was convicted on uncorroborated accomplice statements; (3) the trial court should have instructed the jury that two persons were accomplices as a matter of law; (4) the prosecutor committed misconduct; and (5) there was sentencing error. We shall affirm the judgment.
Codefendants Carie Smith and Susan Ray-Bailey are not parties to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with (1) possession of methamphetamine for sale (Health & Saf. Code, § 11378); (2) sale of methamphetamine (Health & Saf. Code, § 11379); (3) maintaining a place for the sale or use of methamphetamine (Health & Saf. Code, § 11366); (4) possession of marijuana for sale (Health & Saf. Code, § 11359); and (5) possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a).)
Each count alleged defendant served six prior prison terms (Pen. Code, § 667.5, subd. (b) ) and had one prior strike for a serious or violent felony (§§ 1170.12, subds. (a)-(d), 667, subd. (b)-(i)), i.e., a conviction in 2000 for exhibiting a weapon at a peace officer (§ 417.8). Additionally, counts one and two alleged defendant suffered two prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (c)). It was also alleged defendant was personally armed with a firearm (§ 12022, subd. (c)) and vicariously armed (§ 12022, subd. (a)(1)).
Undesignated statutory references are to the Penal Code.
Trial of the prior convictions and prison terms was bifurcated.
Details regarding defendant’s suppression motion appear in our discussion, post.
Evidence at trial included the following:
On November 12, 2005, codefendant Susan Ray-Bailey rented room 413 at the Holiday Inn Express in Corning. She paid cash each day. She refused maid service, stating her husband was ill. The manager noticed about 15 visitors to the room over the course of four or five days.
Law enforcement officers (the Tehama and Glenn County Methamphetamine team or TAGMET) received information of possible drug activity in room 413.
On November 16, 2005, TAGMET conducted surveillance of room 413 from 9:00 a.m. to 1:00 p.m. The officers did not see defendant. They saw three people leave the room, one of which they recognized as John Osborne, who was known to frequent locations associated with narcotics but who had never been arrested in Corning for drug offenses. Osborne left the room around 9:30 a.m. and went to a car in the parking lot. A man in the car removed a two-foot by two-foot metal box. Osborne, unable to fit the box into a backpack, moved the contents of the box into the backpack and returned to room 413. In addition to Osborne, two females visited the room and stayed less than 30 minutes.
Shortly after hotel staff saw Osborne in the hotel laundry room, a hotel guest complained of finding marijuana stems and leaves in the laundry room dryer. However, an officer who went to check found nothing.
TAGMET tried to use an informant to make an undercover buy from room 413, but the informant was unable to gain access to the room.
Police obtained a search warrant, entered room 413, and found defendant, codefendant Carie Smith, and Carrie Moon. The officers found 51.7 grams of methamphetamine, individually packaged (about 500 doses), plus 157.6 grams of marijuana, hypodermic needles, methamphetamine smoking pipes, two scales, drug packaging materials, a calculator, $4,453 in cash, a notebook of encrypted notations, four police scanners, a notebook listing police radio frequencies, several cellular telephones, a loaded .357 magnum revolver, a .9 millimeter semi-automatic gun with four 15-round clips, and other caliber ammunition. The .9 millimeter gun was in plain sight on top of the coffee table. The revolver was in a drawer. The officers also observed surveillance equipment in the room--video cameras aimed out the windows, a monitor, binoculars, and night vision goggles. There were no women’s clothes in the room, only menswear.
Moon initially told an officer that she was there to return some videos or DVDs. She then said that methamphetamine found in her purse was hers, and she got it from defendant with an understanding that he would be compensated in some way. She also had a glass pipe in her purse.
Smith had methamphetamine in her purse but denied possessing any other items found in the room. Her purse contained keys to a van parked in the hotel parking lot and keys to a metal safe in the van. The metal safe contained marijuana, methamphetamine, and syringes.
Other than his presence, nothing connected defendant to the room or van or anything found in the room or van.
In the parking lot, the police saw and questioned Ray-Bailey, who said she rented the room but denied knowledge of any illegal items. When the officer asked what percentage of her statements were true, she indicated about 90 percent.
The officer testified to his opinion that the narcotics were possessed for sale and the hotel room was being used to distribute drugs.
At trial, Moon testified she went to room 413 to return DVDs her cousin had borrowed. She testified she pled guilty to felony possession of the methamphetamine in her purse. She denied buying the drugs from defendant and denied telling the officer that she bought the drugs from defendant. She testified she bought them in another town from a man whose name she did not know. She testified she spoke with defendant by phone on her way to the hotel, and he said he was there waiting for a ride to Redding. Moon admitted she did not want to testify but denied telling her probation officer that she had been threatened.
Codefendant Ray-Bailey presented her “defense” case. No incriminating items were found on her person or in her vehicle. She testified (in narrative form) that she had a bad methamphetamine habit and was having marital problems when she rented the hotel room to store property she planned to sell to raise money to move back to Texas. The men’s clothing belonged to her husband. She bought the guns at a flea market. She traded drugs for equipment she could sell to raise money. None of the items in the room belonged to defendant. The drugs were hers. She did not obtain any drugs from defendant.
Ray-Bailey said she lied when she told the police that she agreed to rent the room for defendant and provide him food and laundry services, ostensibly because he was a client of her in-home supportive services business. She told the police that she was “in and out” of the room and set up defendant’s computer equipment, which she thought was work-related to his construction business. She testified defendant was not staying in the room but, because he was there during the police raid, she told the police that he was staying in the room. When asked on cross-examination if she was afraid of defendant, Ray-Bailey said no. She said she lied to the police because she was scared.
Defendant then put on his defense case. An officer testified room 413 does not look out onto the parking lot, but rather South Avenue and Interstate Highway 5 (which assertedly diminished the usefulness of the room as a place for distribution of drugs). John Osborne testified there were no males in room 413 during any of his visits, including the day of the raid. Osborne went to the room that day to bring Ray-Bailey a safe for her to keep her property, but the safe was too bulky to carry up the stairs. Osborne was arrested that day and was convicted of possessing a deadly weapon and methamphetamine.
The jury returned verdicts finding defendant guilty on all counts and finding true the allegations that defendant was personally armed with a firearm in Counts one and two.
The jury found Ray-Bailey guilty of possession of controlled substances for sale, maintaining a place for the sale of controlled substances, and possession of methamphetamine with a firearm. The jury found true that Ray-Bailey was armed with a firearm. The jury found Smith guilty of possession of controlled substances for sale and found true that she was armed with a firearm but found her not guilty of the offense of possessing methamphetamine with a firearm.
The trial court conducted a trial and found true the prior conviction allegations and prior prison term allegations.
The court sentenced defendant to 22 years in prison, as follows: A four-year upper term for Count two, doubled to eight years due to the prior conviction; a consecutive three-year enhancement for one of the prior narcotics convictions (the other was stayed); the upper term of five years for the arming enhancement; and six one-year prior prison term enhancements. The terms on the remaining counts were ordered to run concurrently.
Defendant appeals.
DISCUSSION
I. Search Warrant
Defendant contends the search warrant was invalid because the supporting affidavit failed to contain sworn facts establishing probable cause. Even assuming for the sake of argument that defendant has not forfeited this contention by failing to raise it in the trial court, the contention fails. The facts were contained in an attachment to the affidavit, and the affidavit swore to the truth of the facts stated in the attachment.
Thus, in applying for the search warrant, peace officer Jason Beeman submitted an affidavit stating: “Jason Beeman swears under oath that the facts expressed by him in the attached and incorporated statement of probable cause are true and that based thereon he has probable cause to believe and does believe that the property described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the locations set forth below. Wherefore, affiant requests that this Search Warrant be issued.” Attached to the affidavit was an unsigned, unsworn three-page, single-spaced “STATEMENT OF PROBABLE CAUSE” describing the surveillance and investigation by fellow officer Andrew Norwood. The STATEMENT OF PROBABLE CAUSE said, “All of the information contained in this affidavit is known to your affiant personally, or through official police channels, records or communications.”
On appeal, defendant does not challenge the warrant application on hearsay grounds. Police officers may rely on hearsay in obtaining a search warrant. (Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 573.)
For the limited purpose of challenging the search, defendant admitted he was staying in room 413. After the trial court unsealed the sealed portion of the search warrant affidavit, defendant filed a section 1538.5 motion to suppress evidence seized in the search on the grounds that (1) the statement of probable cause supporting the search warrant application was facially defective; (2) defendant was entitled to a hearing to traverse the warrant due to material misrepresentations or omissions in the statement of probable cause; and (3) the officers violated the knock-notice requirement. Defendant did not argue the statement of probable cause was defective on the ground it was not made under oath. The trial court denied the suppression motion. Defendant does not challenge the denial of the motion on any of the three grounds raised in the trial court.
On appeal, defendant’s only contention is that the STATEMENT OF PROBABLE CAUSE was unsigned and unsworn. Defendant concludes there were no sworn facts to support issuance of the search warrant. Defendant argues an affidavit containing no sworn facts which incorporates an unsworn statement does not satisfy the Warrant Clause of the Fourth Amendment -- a matter subject to de novo review.
Defendant notes the warrant application also attached an unsigned, unsworn statement of the officer’s expertise. The affidavit did not swear to the truth of the facts in the statement of expertise. Defendant does not assign reversible error on this point. In any event, the statement of probable cause did include reference to the officer’s expertise, stating he had served as a peace officer since June 2000, was employed by the Red Bluff Police Department and was assigned to TAGMET.
However, defendant ignores the oath in the affidavit, swearing the truth of the facts in the incorporated statement of probable cause. Defendant cites no authority holding a warrant invalid where the statement of probable cause was attached to an affidavit which swore to its truth.
Defendant’s cited authority is inapposite because it did not involve a sworn affidavit which expressly swore to the truth of the facts in the incorporated statement. Thus, defendant cites the Fourth Amendment itself and case law for the general proposition that a warrant will not issue “but upon probable cause, supported by oath or affirmation . . . .” (See also, Nathanson v. United States (1933) 290 U.S. 41, 47 [78 L.Ed. 159] [a valid oath is a constitutional condition precedent to the issuance of a valid search warrant, and an unsworn affirmance of a belief or suspicion is not enough to establish probable cause]; see also, § 1525 [search warrant cannot issue but upon probable cause, supported by affidavit].) Here, there was a statement of probable cause that was supported by an oath in the affidavit which incorporated the statement of probable cause.
Defendant cites our opinion in People v. Leonard (1996) 50 Cal.App.4th 878. However, defendant’s quotation from Leonard displays its inapplicability to the case before us. Thus, Leonard said: “The three-page ‘Statement of Probable Cause,’ even if prepared by Officer Redmond, was not made under oath or even signed by him. Officer Redmond’s affidavit submitted to the magistrate incorporated the ‘Statement of Probable Cause’ and was undoubtedly intended to include the officer’s sworn statement that the facts in it were true, but it did not do that. The officer, ‘being sworn’ avers only that ‘on the basis of the information contained within [the] . . . attached and incorporated Statement of Probable Cause he/she has probable cause to believe and does believe’ that the items described in the accompanying search warrant will be found at the property. [¶] . . . The officer’s belief is not decisive. Warrants must be issued on the basis of facts, not beliefs or legal conclusions. [Citation.] The submission to the issuing magistrate did not contain facts which were sworn to by anyone. . . . [¶] The omission is not cured, as the People argue, by the paragraph preceding the magistrate’s signature on the warrant stating, ‘This Search Warrant and incorporated affidavit was sworn to and subscribed before me this [date].’ As shown above, the affidavit did not swear to any facts. Swearing and subscribing to the affidavit therefore added nothing.” (Id. at p. 884, orig. italics omitted,; italics added.)
Here, in contrast to Leonard (and in contrast to similar defects in out-of-state cases cited by defendant), the officer’s sworn affidavit did include the officer’s sworn statement that the facts in the attached statement of probable cause were true. This satisfied the purpose of the affidavit requirement, i.e., to prevent perjury. (Leonard, supra, 50 Cal.App.4th at p. 884.)
Though Leonard does not help his case, defendant defends Leonard against criticism by the Second Appellate District in People v. Hale (2005) 133 Cal.App.4th 942, which held valid a search warrant where the officer signed an oath on the face of the warrant, swearing he had probable cause to believe the described property could be lawfully seized and that his belief was based on the statement of probable cause contained in the warrant. (Id. at p. 944, 947.) Disagreeing with Leonard, Hale concluded the warrant was valid because the oath necessarily implied that the facts in the statement of probable cause were true. (Hale, supra, 133 Cal.App.4th 942.) Defendant argues Hale’s disagreement with Leonard was dictum because there was an oral oath in Hale that cured any defect, in that the officer testified in the trial court that the magistrate, before issuing the warrant, made the officer orally swear the facts contained in the warrant application were true. (Id. at p. 947.) Defendant notes there was no oral oath in this case. Since neither Leonard nor Hale help defendant in this case, we have no need to reconcile the two opinions.
We conclude defendant fails to show grounds for reversal with respect to the search warrant. We need not address the parties’ discussion as to whether the evidence was alternatively admissible under the good faith exception to the exclusionary rule.
II. Accomplice Issues
Defendant raises two accomplice issues, neither of which has merit.
A. Jury Instructions
Defendant complains the trial court let the jury decide whether Ray-Bailey and Moon were accomplices rather than instruct sua sponte that Ray-Bailey and Moon were accomplices as a matter of law. We see no basis for reversal.
The court instructed the jury: “Before you may consider the statements or testimony of Carrie Moon and Susan Ray-Bailey as evidence against defendant Boswell regarding the crimes, you must decide whether Carrie Moon and Susan Ray-Bailey were accomplices to those crimes. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if . . . he or she personally committed the crime or if, one, he or she knew of the criminal purpose of the person who committed the crime, and, two, he or she intended to, and did in fact, aid, facilitate, and promote, encourage, or instigate the commission of the crime. [¶] The burden is on the Defendant Boswell to prove that it is more likely than not that Carrie Moon and Susan Ray-Bailey were an accomplice [sic].”
We will assume the contention is not forfeited by defendant’s failure to pursue it in the trial court. Our assumption does not mean we accept defendant’s unfair accusation that the People have misrepresented the record. The People say defendant agreed to the modified version of the accomplice instruction. This statement is supported by the record, which shows the trial court said, “After discussions with counsel informally, it was agreed that the Court would insert the names of [Moon and Ray-Bailey] and limit the instruction to [defendant].”
As to Moon, defendant fails to show she was an accomplice as a matter of law.
Thus, in order to be an accomplice, Moon would have to be “liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.)
Defendant argues Moon was an accomplice because she (1) was charged as a defendant in the original complaint, and (2) avoided trial by pleading guilty to felony possession of narcotics. However, the only charges against Moon in the original complaint were possession of methamphetamine (Health & Saf. Code, § 11377) and possession of a device used for ingesting a controlled substance (Health & Saf. Code, § 11364). These were not identical to the offenses charged against defendant -- (1) possession of methamphetamine for sale (Health & Saf. Code, § 11378); (2) sale of methamphetamine (Health & Saf. Code, § 11379); (3) maintaining a place for the sale or use of methamphetamine (Health & Saf. Code, § 11366); (4) possession of marijuana for sale (Health & Saf. Code, § 11359); and (5) possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a).)
The evidence showed only that (1) Moon was in room 413 with methamphetamine and a pipe in her purse, and (2) she told police she got the drugs from defendant and planned to “compensate” him in some way. As a mere (unarmed) buyer, Moon was not liable to prosecution for the identical offenses charged against defendant. In narcotics cases, the purchaser is not an accomplice of the seller. (People v. Mimms (1952) 110 Cal.App.2d 310, 314.)
Though not argued by defendant, we note that, technically, a buyer might be viewed as an aider and abettor of a seller’s drug-selling activity, which would make the buyer liable to prosecution for selling drugs. However, in People v. Galli (1924) 68 Cal.App. 682, we explained why the buyer is not an accomplice of the seller. We adopted the reasoning of case law regarding the sale and purchase of intoxicating liquors, i.e., in order to be an accomplice, “‘[t]he abettor . . . must stand in the same relation to the crime as the criminal--approach it from the same direction, touch it at the same point. This is not the case with the purchaser of liquor. His approach to the crime is from the other side; he touches it at wholly another point. . . . The purchaser of liquor, by his offer to buy, induces the seller of the liquor to make the sale; but he can not be said to “assist” him in it. The whole force, moral or physical, that went to the production of the crime as such, was the seller’s.’” (Id. at p. 685.)
Thus, Moon was not an accomplice as a matter of law. Indeed, it appears that, as a matter of law, she was not an accomplice. Thus, defendant got better than he deserved when the court instructed the jury it could find she was an accomplice.
As to Ray-Bailey, she was not an accomplice as a matter of law. Her status was in dispute. Before trial, she denied any knowledge or involvement in the criminal activity. Then, at trial she took full responsibility, claiming the drugs were hers and she did not get them from defendant. Since there was a dispute about whether Ray-Bailey was an accomplice, the trial court properly left the matter for the jury to determine. (People v. Hoover (1974) 12 Cal.3d 875, 880.)
We conclude defendant fails to show any reversible error regarding accomplice instructions.
B. Corroboration
Defendant argues the judgment must be reversed because he was convicted on the basis of uncorroborated, recanted accomplice statements. The argument fails.
“A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (§ 1111.) The jury was instructed on the need for corroboration.
The jury was instructed: “If you decide that a declarant was an accomplice, then you may not convict Defendant Boswell based on their statements alone. You may use the statements or testimony of an accomplice to convict the defendant only if: One, the accomplice’s statement or testimony is supported by other evidence that you believe; and, two, the supporting evidence tends to connect the defendant to the commission of the crimes.”
Defendant’s position is flawed because he assumes Moon was an accomplice, and he therefore disregards her statement to the police that she got her drugs from defendant. However, we have explained Moon was not an accomplice. Therefore, her statement incriminating defendant need not be corroborated, and her statement, if believed by the jury, provided corroboration for Ray-Bailey’s statements incriminating defendant (in the event the jury found Ray-Bailey was an accomplice).
We recognize the trial court gave the jury the option of finding Moon was an accomplice. Nevertheless, we see nothing in the closing arguments urging the jury to do so.
We conclude defendant fails to show grounds for reversal based on uncorroborated accomplice statements.
III. Claim of Prosecutorial Misconduct
Defendant claims the judgment should be reversed because the prosecutor committed prejudicial misconduct in questioning witnesses and in closing argument to the jury. We disagree.
Claims of prosecutorial misconduct are forfeited if the defendant failed to object in the trial court, unless a timely curative admonition would not have alleviated any potential harm. (People v. Farnam (2002) 28 Cal.4th 107, 199-200.) In order to obtain reversal under the federal Constitution, any prosecutorial misconduct must be so egregious that it results in unfairness and constitutes a denial of due process. (People v. Prieto (2003) 30 Cal.4th 226, 260 (Prieto).) Prosecutorial conduct that does not render a trial fundamentally unfair is misconduct under state law only when it attempts to persuade the trier of fact with reprehensible or deceptive methods. (Ibid.)
We consider each claimed instance of misconduct.
A. Questioning Witnesses
Defendant says the prosecutor committed prejudicial misconduct by posing questions to Moon and Ray-Bailey, without evidentiary basis, insinuating they were afraid of defendant. We conclude defendant fails to show grounds for reversal.
Defendant cites from Moon’s trial testimony:
“Q. You told your probation officer you didn’t want to testify today; is that correct?
“A. I don’t believe that I should be testifying at all and I -- yeah, I don’t quite understand why I am, you know, why I was subpoenaed --
“Q. Ma’am, I just want you to answer the question.
“A. Okay.
“Q. Did you tell your probation officer you don’t want to testify?
“A. I told the probation officer -- yeah, I did.
“Q. Did you tell your probation officer you had been threatened?
“A. No. I said that if I was going to be in a situation where I was going to be testifying against, you know, not particularly the defendant, but anybody, then, you know, you would think that like the D.A. or whoever it is that is wanting you to do that would, you know, try to talk to you before the matter or before the trial or whatnot, and when you’re a witness, you know, you ought to take certain precautions, I guess, you know.
“Q. And yesterday you had a meeting with the D.A.; is that correct?
“A. I didn’t go.”
Defendant cites from Ray-Bailey’s testimony:
“Q. Are you afraid of defendant Boswell?
“A. No, I am not.”
Defendant claims these questions were improper because the prosecutor never showed any evidence that the witnesses feared or had been threatened by defendant.
It is misconduct for a prosecutor to ask questions which suggest facts adverse to the defendant without a good faith belief that such facts are true. (People v. Bolden (2002) 29 Cal.4th 515, 562.) However, defendant failed to object in the trial court, hence the prosecutor was not put to the task of proving good faith, and we cannot ascertain the prosecutor lacked good faith. We reject defendant’s unsupported argument on appeal that objection in the trial court would have been futile or that the failure to object constituted ineffective assistance of counsel.
Accordingly, this contention is forfeited by defendant’s failure to object in the trial court.
B. Comments During Closing Argument
1. Witnesses’ Fear of Defendant
Defendant claims the prosecutor committed misconduct by arguing to the jury, without evidentiary support, that the witnesses were afraid of defendant. We see no basis for reversal.
Thus, the prosecutor argued to the jury:
“All of the evidence obtained on November 16th makes Defendant Boswell big fish. He is the leader, he is the drug dealer and what they did during the trial is try to convince you that he is not involved. He is the only one that benefits when Defendant Ray-Bailey takes the stand and falls on the sword and says, ‘It is all me.’ He is the only one that benefits when Carrie Moon changes her story and says, ‘No, I got the drugs from some Mexican guy in Willows and I don’t know when, but I had it on my person and I was just there to drop off videos.’ Don’t let them get away with it. Don’t let Defendant Boswell walk because Carrie Moon is afraid of getting a rat jacket, she is being afraid of being labeled as a snitch. And the reason you know that is true is because she is a drug user, if the word gets out that she rats and testifies against the people she buys drugs from --
“[Ray-Bailey’s attorney]: I am going to object to this line of argument. There is nothing in the evidence that would support --
“THE COURT: Sustained.
“[Defendant’s attorney]: I join.
“[Smith’s attorney]: I join.
“THE COURT: Sustained.
“[Prosecutor]: Don’t forget that changing her story only benefits Defendant Boswell. [¶] And the same goes for Defendant Ray-Bailey. The only one who benefits is Defendant Boswell when she gets up and tries to fall on the sword.
“Now, let’s talk about her statement for a minute. Here is how you know that it is not the truth, that it is inconsistent and doesn’t make sense. Her story is: Yesterday, I was selling drugs to get stuff to take it to a flea market and sell it to get money. Well, that doesn’t make any sense because, A, 50 grams of methamphetamine, how does she come across in the first place if she has got no money? You heard from Agent Beeman that a gram would cost you anywhere from $50 to $75. Where did she get the money from [sic] all of those drugs to sell it for stuff? It doesn’t make sense. Her story is laughable, it doesn’t make any sense. She says she got the guns from a flea market. That is laughable. They don’t sell handguns at flea markets. She wants you to believe that she has had divine intervention and that she has had a change of heart. That is all too convenient. It is all too -- doesn’t make any sense. She is scared of Defendant Boswell. She won’t --
“[Defendant’s attorney]: Objection, Your Honor, there is no evidence in the record whatsoever to support that.
“THE COURT: Overruled.
“[Prosecutor]: She is scared of Defendant Boswell because he is the one that benefits, he is the big time drug dealer. She doesn’t want to get up on the stand and point the finger at him. In fact, she saves face, she makes herself out to be the hero or whatever she is trying to do if she saves Boswell and falls on the sword herself. That is how you know her statement yesterday just doesn’t add up.”
To the extent defendant did not object to these comments, his challenge to them is forfeited. (Farnam, supra, 28 Cal.4th at pp. 199-200.) In any event, they were fair commentary on reasonable inferences to be drawn from the evidence. (Id. at p. 200; People v. Williams (1997) 16 Cal.4th 153, 221.) Thus, the witnesses’ fear of defendant was a reasonable inference from the evidence that (1) he was armed with firearms; (2) the witnesses recanted prior statements incriminating defendant (which benefited only defendant); and (3) one witness admitted she told her probation officer she did not want to testify.
This same reasonable inference applies to the objection which the trial court overruled, regarding the prosecutor’s remark that Ray-Bailey was afraid of defendant.
As to the comment about what would happen to Moon if word got out that she was a snitch, the trial court sustained objections to that comment, and defendant fails to show grounds for reversal. Defendant did not request that the jury be admonished. The jury instructions included the usual instruction that the attorney’s remarks are not evidence, and the jurors must decide the case based on the evidence. The prosecutor’s comment was not egregious, deceptive, or reprehensible so as to constitute grounds for reversal. (Prieto, supra, 30 Cal.4th at p. 260.)
2. Other Comments
Defendant additionally complains of the following comments by the prosecutor during closing argument:
-- “It is common knowledge that drug dealers will kill each other over drugs, you got to be able to protect yourself, that is why they have the weapons, and you know that is true because this one was loaded, and it was in a place that you couldn’t see it, if the dresser was closed.”
-- “Mr. Thompson [defendant’s attorney] wants you to believe that the statement from the stand from Ms. Ray-Bailey was a sincere, a real confession. People don’t confess on the stand unless they have a reason to do it. And it is not simply because she wants to fall on the sword, it is because she wants to help Defendant Boswell.”
-- “The judge is going to tell you reasonable doubt is that proof that leaves you with an abiding conviction that the charge is true. That means a week from now you can look yourself in the mirror and say, ‘I still think she [sic] did it. I still think the People made their case. I still think it is true.’ That is an abiding conviction, something a week from now you can look back and say, ‘Yeah, I agree, I still think that way.’ [¶] It [the jury instruction on reasonable doubt] goes on to say you need not eliminate all possible doubt, but as you know, nothing is perfect, there is always going to be a ‘what if,’ but reasonable doubt is not something based on imaginary or hypothetical or chance. It is something that is real, something that is reasonable. We’ll talk about, a little bit more about [sic] what is reasonable and what is unreasonable in this case.”
-- “So it is my burden as your representative of the People to prove each one of these elements [of each count].”
-- “I know you are probably tired, it is not very interesting, but you’re the voice of the community here, you decide how much law enforcement you want in your community, you decide if this behavior is acceptable and legal or if it is not. So your part here is of vast importance. We couldn’t do this, we couldn’t have our system of justice, we couldn’t view and have the exercise of rights without you. You make all of the difference, and like I said, you are the voice of the community. You decide how much law enforcement you want.”
-- “Be the voice of the community. Don’t let Defendant Boswell get away with using these other two [codefendants] anymore.”
Defendant’s challenge to these comments is forfeited due to his failure to object to them in the trial court. (Farnam, supra, 28 Cal.4th at pp. 199-200.) We reject defendant’s unsupported argument that his failure to object should be excused because contemporaneous objections could not have remedied the damage caused by the prosecutor’s comments. We also reject defendant’s argument that his attorney’s failure to object must be deemed ineffective assistance of counsel.
Though we need not go further, we note defendant fails to show that the cited comments constitute prejudicial misconduct by the prosecutor. Defendant tries to build a case by mischaracterizing the comments. For example, he argues the prosecutor misstated the law of reasonable doubt by suggesting the jurors need remain confident of a guilty verdict only for one week. It is defendant who misstates the prosecutor’s argument. We also reject defendant’s interpretation of the comments as urging the jurors to act as partisans allied with the prosecution or urging them to convict defendant in order to prevent future crime. In any event, as we have stated, defendant forfeited his contention by failing to object in the trial court.
We conclude defendant fails to show grounds for reversal based on prosecutorial misconduct.
IV. Sentencing
Defendant complains his constitutional rights were violated by sentencing based on aggravating factors not decided by the jury and by ex parte re-sentencing in his absence. We see no basis for reversal.
A. Background
In defendant’s presence, the trial court on May 5, 2006, imposed sentence, stating as follows:
“The Court has considered the circumstances in aggravation and compared those to the circumstances in mitigation, there being none. The Court finds clearly that the facts in aggravation outweigh those in mitigation as set forth on Page 10 [of the probation report]. Defendant was in, in [California Rule of Court, rule 4.421 ] (a-2), the defendant was in possession of two guns at the time of the commission of the crime, which is the basis of the special allegation, as already stated by the Court. The defendant showed criminal professionalism and sophistication, those facts have already been recited under that Paragraph (a-8). (B-2), the defendant’s prior convictions are numerous. The defendant has served six prior prison terms. The defendant was on parole when the crime was committed. And, the defendant’s prior performance on probation and parole were unsatisfactory.
Undesignated rule references are to the California Rules of Court.
“Now, I am going to select Count 2 [sale of methamphetamine] as the principal term, and because I found the facts in aggravation outweigh those in mitigation, I will impose a four-year upper term for that count.
“As to the two prior narcotics convictions, Mr. Wilson [the prosecutor], I appreciate your argument [that two enhancements should be imposed though the two convictions occurred in the same case]. I could not find anything on point, but if you follow the logic set forth in [section] 667.5, which does not allow an additional year for a commitment, two commitments on two separate crimes, I am going to err on the side of caution. [¶] I am going to impose a three-year term for the first prior. I am going to impose a three-year term for the second prior, I am going to make that one concurrent.
“As to the armed allegation under Count 2, for the facts stated, I don’t agree with [defense counsel] that the mid term is appropriate in this matter, on the armed allegation. So I, therefore, will impose the upper term of five years for the reasons stated as to the aggravating factors.
“As to Count 1, again, consistent with my sentencing in Ray-Bailey, I find that the [sic] all of the charges are, occurred in the same location, basically the same thought process was, applies to all of the crimes charged and, as I already stated, I don’t find them independently or predominantly independent.
“So as to Count 1, I impose the term of eight months. Count 3, 8 months. Count 4, eight months plus four months. Count 5, one year. All of those terms will run concurrent to Count 2. By my count, then, [defense counsel], taking the upper term of four years doubling it to 8, 5 years for the prior armed, 3 years for the one prior dope conviction, and then 6 years for the six prior prison commitments. All of those will clearly run consecutive to each other. That, by my count is a total of 22 years.”
Four days later, on May 9, 2006, the trial court (without further hearing) issued a “MINUTE ORDER” stating:
“In reviewing the record, the Court discovered that the concurrent sentences for Counts I, III, IV and V were imposed incorrectly. The Court imposed one third the middle term, when the Court should have imposed the full term. In addition, the Court imposed one third the middle term for an enhancement [§ 12022(a)(1)] under Count IV. There was no such enhancement for Count IV.”
The minute order accordingly modified the judgment to strike the gun enhancement on Count IV and to state that on Counts I, III, IV and V, “Defendant shall be sentenced to the upper term of [three years for Counts I, III, and IV, and four years for Count V].”
The minute order concluded: “If either side has an objection to this modification of the judgment, they may calendar the matter within 35 days of the date of this Minute Order.”
Defendant did not object.
B. Ex Parte Correction
Defendant claims the minute order reflected an “ex parte re-sentencing” without notice or hearing, which violated his statutory and constitutional right to be present and represented by counsel (U.S. Const., Sixth Amend.; § 977) and his Fifth Amendment right to due process. We see no basis for reversal.
Defendant argues the trial court was required to, but failed to, obtain a waiver of his presence under section 977, which provides in part: “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . .” (§ 977, subd. (b)(1).)
The People’s response is that the initial sentencing (at which defendant was present) yielded unauthorized components which could be corrected even by an appellate court, and so the correction in defendant’s absence was without consequence. The People assert the initial sentence in this case was unauthorized because the reduction to one-third of the middle term applies only if consecutive sentences were imposed. (§ 1170.1, subd. (a).) Here, the subordinate terms were imposed concurrently. The People also assert the gun enhancement on Count IV was unauthorized--a point about which defendant obviously does not complain since the striking of the enhancement benefited him.
Section 1170.1, subdivision (a), provides in part: “Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements . . . . The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed . . . .” (Italics added.)
We agree the original sentence was unauthorized.
A sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case. (People v. Scott (1994) 9 Cal.4th 331, 354.) An unauthorized sentence is subject to judicial correction, even on appeal, if the error is clear and correctable independent of any factual issues presented by the record at sentencing. (People v. Smith (2001) 24 Cal.4th 849, 854; People v. Burnett (2004) 116 Cal.App.4th 257, 261.)
Although not cited by the parties, People v. Quintero (2006) 135 Cal.App.4th 1152, is on point. Quintero said, “the court imposed an unauthorized term of one-third the midterm for the count 4 robbery offense. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time. . . . Such an unauthorized sentence is subject to correction on review. [Citation.]” (Id. at p. 1156, fn. 3.) Quintero vacated the unauthorized sentence and corrected it to reflect imposition of the full midterm (consistent with the court’s selection of the midterm on the other count subject to determinate sentencing). (Id. at p. 1156 & fn. 3.) Remand was not necessary because the record clearly reflected the trial court’s intention to run the Count 4 sentence concurrently. (Ibid.)
Here, defendant does not dispute that the initial judgment, reducing sentence on the subordinate counts to one-third the middle term, was incorrect and unauthorized. He instead claims the minute order changing the concurrent terms from one-third the middle term to full upper terms was an exercise of sentencing discretion requiring his presence. (We reject post defendant’s related argument that the court’s upward departure from the middle term without a jury trial on the aggravating factors violated his constitutional rights as stated in Cunningham v. California (2007) _ U.S. _ [166 L.Ed.2d 856].)
However, the minute order’s substitution of the upper term did not require a hearing. The trial court already expressed its intent to impose upper terms during the sentencing hearing at which defendant was present. The reduction to one-third the middle term was an erroneous application of section 1170.1, an unauthorized sentence which the judge corrected by minute order and replaced with the upper terms consistent with the reasoning explained by the court during the sentencing hearing.
We conclude defendant fails to show any reversible error in the trial court’s correction of the unauthorized sentence.
C. Cunningham
Defendant filed a supplemental brief arguing that his constitutional rights were violated by his being sentenced without a jury trial on aggravating factors used to impose the upper terms. Even assuming the matter is not forfeited for failure to raise it in the trial court (as urged by the People), we reject defendant’s argument.
Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] 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. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 302-304 [159 L.Ed.2d 403, 413-414].)
Accordingly in Cunningham, supra, _ U.S. _ [166 L.Ed.2d 856], the United States Supreme Court held that, by assigning 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. (Id. at p. _ [166 L.Ed.2d at pp. 870-871].)
Cunningham did not alter the rule that the trial court may increase a penalty for a crime based upon a defendant’s prior convictions without having this aggravating factor submitted to the jury. (People v. Black (2007) __ Cal.4th __, __, fn. 8 [30].)
Here, there were no mitigating factors.
As to aggravating factors, one of the aggravating factors cited by the trial court--defendant’s possession of a gun at the time of the commission of the crime (rule 4.421(a)(2))--was found true by the jury, but that was in connection with the special allegation that defendant was personally armed with a firearm (§ 12022, subd. (a)) in the sale of methamphetamine and possession for sale of methamphetamine. Since that finding was used for an enhancement, as noted by the trial court, we will not consider it for upper term sentencing. (Rule 4.420(c).)
Rule 4.420(c) provides: “To comply with section 1170(b) [court may not impose upper term by using the fact of any enhancement upon which sentence is imposed], a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term.”
Another aggravating factor cited by the trial court was that defendant had numerous prior convictions (rule 4.421(b) ), as reflected in the probation report. Indeed, the probation report showed 27 prior convictions in 25 criminal cases for offenses committed over the course of 22 years, between August 1983 (when defendant was age 18) and January 2005. These prior convictions consisted of 14 parole violations and 13 others encompassing seven felonies (including drug offenses, gun offenses, and burglary) and several misdemeanors (including assault and battery). Even discounting the three prior convictions which were used for prior conviction enhancement/strike purposes and therefore cannot be used for upper-term sentencing (rule 4.420(c)), that leaves 24 prior convictions, which by anyone’s count is “numerous.” It is not necessary to discount the additional four prior convictions underlying the six prior prison term enhancements (People v. Hurley (1983) 144 Cal.App.3d 706, 709), but even if we were to deduct them, that would still leave 20 prior convictions, which is still numerous.
Rule 4.421(b) states that aggravating circumstances include the fact that “[t]he defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous . . . .”
As indicated, a jury trial was not required for the prior convictions.
On appeal, defendant does not dispute that his prior convictions are numerous nor does he contest on appeal (nor did he contest in the trial court) the use of the probation report to prove the prior convictions. To the extent defendant suggests prior convictions had to be proved beyond a reasonable doubt, he cites only Cunningham which, as we have indicated, does not apply to prior convictions. (Black, supra, __ Cal.4th __, __, fn. 8 [30].)
Defendant argues Apprendi, supra, questioned the holding of a prior decision that a jury trial was not required for prior convictions. However, Apprendi, supra, 530 U.S. at pages 489-490, merely said it was arguable that a prior decision (Almendarez-Torres v. United States (1998) 523 U.S. 224, 226-227 [140 L.Ed.2d 350]) was incorrectly decided, but Apprendi had no need to revisit the matter. Defendant relies principally on the opinion of Justice Thomas, which is not authoritative because it was not the majority opinion but a concurring opinion in which only one other Justice joined.
We conclude the aggravating factor of numerous prior convictions did not require a finding by the jury.
One valid aggravating factor is sufficient to expose defendant to the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.) Defendant argues that, because the trial court relied not only on prior convictions but also on aggravating factors for which defendant is entitled to a jury trial, we cannot say the trial court would have imposed the same sentence based on the single valid factor of prior convictions alone. However, given the sheer number of prior convictions in this case, we are satisfied beyond a reasonable doubt that the trial court would have imposed the upper term based on that valid factor alone. Therefore, any error in considering other factors was harmless.
We conclude defendant fails to show any reversible sentencing error.
DISPOSITION
The judgment is affirmed.
We concur:
BLEASE, Acting P.J.
CANTIL-SAKAUYE, J.