Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super. Ct. No. INF049028, James S. Hawkins, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendant was charged with the murder of Alonso Ramos. (Pen. Code, § 187, sub d. (a).) A jury found him guilty of the lesser included offense of voluntary manslaughter (§ 192, sub d. (a)) and also found that he personally used a firearm in the commission of the crime (§ 12022.5, sub d. (a)). Defendant was sentenced to 21 years in prison, consisting of the upper term of 11 years for the manslaughter conviction, plus the upper term of 10 years for the personal use enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant first contends the trial court violated his right to confront witnesses by admitting the preliminary hearing testimony of prosecution witness Sylvia Aleman. He maintains the trial court erroneously found that the prosecution exercised reasonable or due diligence in attempting to locate her for trial, and that she was therefore unavailable as a witness. Based on our independent review of the evidence presented at the due diligence hearing, we conclude that the prosecution demonstrated it used reasonable diligence to locate Aleman. Thus, the trial court properly found Aleman was unavailable and properly admitted her preliminary hearing testimony.
Defendant next claims the trial court violated his right to confrontation in admitting a tape recording of a 911 call that Aleman made shortly after the shooting. This claim fails because, as the trial court found, Aleman was unavailable to testify at trial and the defense had an opportunity to cross-examine her regarding her 911 statements at the preliminary hearing. In any event, the admission of the 911 tape was harmless beyond a reasonable doubt.
Defendant also claims the prosecutor prejudicially erred in eliciting evidence from two rebuttal witnesses that defendant had a reputation for being a thief and a drug user, and the trial court abused its discretion in denying his motion for a mistrial based on the erroneous introduction of this evidence. Before the witnesses testified, the court ruled that the witnesses could not mention these matters. We reject this claim because the witnesses’ improper statements were curable by striking them and admonishing the jury to disregard them. In addition, defendant waived his claim of error regarding witness Cunningham’s brief statement that defendant had a reputation for stealing things. In any event, Cunningham’s statement was harmless because, when defendant testified, the prosecutor impeached him with evidence that he had a prior conviction for receiving stolen property, a crime involving theft.
Lastly, defendant claims the trial court violated his right to a jury trial in imposing the upper terms on his manslaughter conviction and personal use enhancement. We find no constitutional violation. Defendant’s recidivism—particularly the trial court’s finding that his prior convictions were numerous and that he was on probation at the time of the crime—rendered him eligible for each upper term. Accordingly, we affirm the judgment.
II. STATEMENT OF FACTS
A. Overview
At trial, defendant testified and did not dispute the prosecution’s evidence that he shot Ramos twice in the head with a rifle and buried his body in the desert. Instead, defendant claimed he shot Ramos in self-defense because he believed Ramos was armed with a rifle, had been paid to kill him, and was going to kill him.
B. Prosecution Evidence
In November 2004, Aleman was living in a trailer in a trailer park located behind Kennedy Market in Thermal. Defendant was living in another trailer near Aleman’s trailer. Defendant also owned a horse trailer that included space for sleeping. Ramos was staying in the horse trailer.
On November 18, during the early morning hours, Aleman heard two male voices arguing from inside her trailer. One of the voices was defendant’s. She heard one shot and got up to look outside and see what was going on. Before she looked outside, she heard a second shot, then heard defendant say, “one, two, pow.” She could not see very well because it was very dark, and her trailer had no electricity.
Shortly after the shooting, it began to get lighter outside. Aleman saw defendant leaning over a body on the ground, which defendant called “Alonso or Lonso.” Defendant was saying that the victim “shouldn’t have messed with him or fucked with him,” and that “he [the victim] was coming after me.” Aleman saw defendant go through the victim’s pockets and heard some change fall out. She heard defendant say, “What do you have here? A man’s pipe.” She saw defendant pull the victim’s body into the bed of his white truck, and hitting the body as he was loading it into the truck.
At 5:30 a.m., Aleman called 911 and reported the shooting. She told the operator she believed she had just witnessed a murder and identified defendant as the suspect. She said defendant left in his white truck and was headed to Indio. She later testified at defendant’s preliminary hearing. Her preliminary hearing testimony and a tape recording of her 911 call were admitted into evidence at trial.
At around 7:30 a.m., an employee at Western Exterminator Company in Thousand Palms saw someone dumping something in a dumpster in the parking lot of the business. A manager of the business looked outside his window and saw defendant throw something into the dumpster. The manager approached defendant and asked him what he was doing. Defendant was using a garden hose to wash out the bed of his truck. Defendant apologized, said he was leaving, and turned the water off. The manager noted defendant’s license plate number and had someone call the sheriff. Numerous items of bloody clothing were found in the dumpster.
Before 10:00 a.m., defendant was at a truck wash washing his truck. An employee saw defendant throwing things away in the trash cans. After defendant left, the employee found a bloody blanket in one of the trash cans. The employee also found other items with blood on them, and a .22-caliber live round.
Later that evening, officers received a call advising that defendant was at a chapel on the Torrez Martinez reservation. Sheriff’s sergeant Jaime Alvarez found defendant at the chapel and arrested him around 7:30 p.m. Defendant had a dog with him and told Alvarez he would take him to Ramos’s body if Alvarez would drop the dog off at defendant’s home. Defendant showed Alvarez where he had hidden Ramos’s body. It was in a fire pit on a small ranch in Thousand Palms. The body was covered by a tire and a tree stump. Defendant then showed officers where he had hidden his white truck. Several days later, he showed officers where he had hidden the rifle he used to shoot Ramos.
Forensic pathologist Mark McCormick performed an autopsy on Ramos. Ramos had two gunshot wounds to his head, a “contact” wound in the center of his forehead, and a “distant” wound on the left side of his head. The distant wound could have been shot from a distance of 2 feet or 20 feet. The center wound had a “muzzle stamp,” indicating the muzzle of the gun was placed directly on the skin. Both wounds were inflicted at approximately the same time, within seconds or minutes of each other, and while Ramos’s heart was still beating. Both wounds were fatal, and either would have caused death within a short period of time.
Richard Twiss testified as a firearms expert. He explained that a .22-caliber rifle is a single-shot and bolt-action weapon that, without a magazine, would not fire two consecutive rounds without being manually loaded between shots. To fire again after the first shot, the shooter must manually eject the casing by pulling the bolt, putting a live cartridge into the weapon’s breach, and closing the bolt into the breach.
C. Defendant’s Testimony
Defendant testified in his own behalf. He was 50 years old at the time of trial in May 2006. He played polo professionally from age 22 until the year 2000. He also raised and trained horses. After he stopped playing polo, he and his wife purchased a farm in Thermal and raised alfalfa. They divorced and sold the farm in 2003, and defendant received $111,000 in proceeds from the sale.
In November 2003, defendant moved into a trailer in a trailer park behind Kennedy Market in Thermal. Gilbert Ramirez owned the market, the trailer park, and the trailer defendant was living in. Ramirez was a city council member in Coachella. He agreed to hold defendant’s money for him and return it upon defendant’s request. He also agreed to allow defendant to live in his trailer in exchange for the interest on the money, and allow defendant to purchase goods at the market on a tab.
Defendant’s girlfriend, Donette Duro, lived with defendant “on and off” in his trailer. Donette drank and periodically used drugs, and defendant argued with her about her excessive drug use. Donette left defendant’s trailer for periods of time, but she would always come back.
Defendant met Ramos in August 2004, approximately three months before the shooting. Ramos helped defendant with chores and they became friends. Defendant allowed Ramos to stay in one of the three bedrooms in his trailer, and provided him with “room and board” in exchange for helping defendant.
Defendant speaks Spanish and English. Ramos spoke Spanish but no English. Donette spoke only English.
According to Aleman, Donette “never made any sense.” Donette did not testify at trial.
The “room and board” arrangement with Ramos lasted until the end of October. At that time, Ramos began using methamphetamine in defendant’s trailer, so defendant asked him to leave. Ramos had nowhere to go, so defendant allowed him to live in his horse trailer until he found a place. The horse trailer had living quarters and a battery for lights, but no electricity. Defendant ran an extension cord from his trailer to the horse trailer so that Ramos could operate a fan and a small refrigerator.
Ramos was angry with defendant for kicking him out of his trailer. He became violent, began threatening defendant, and showed defendant signs he was going to do “what he wanted to do.” Defendant had two vehicles, a Forerunner and a Cadillac. He also had possession of a white pickup truck a friend had loaned him. Ramos would ask defendant to use his Forerunner or the truck. When defendant refused, Ramos sometimes “got real physical and punched” defendant, and used the vehicles anyway.
At this time, Ramirez and defendant were at odds over how much money Ramirez owed defendant. Ramirez had stopped giving defendant money, and obtained a restraining order against defendant. People were telling defendant that Ramirez was going to cheat him out of his money, that Ramirez had a reputation for beating people up for less money than defendant had, and that defendant made a mistake in trusting Ramirez with his money.
At the same time, the tensions between defendant and Ramos began to escalate. Ramos was using a lot of methamphetamine and using the truck without defendant’s permission. Defendant told Ramos he did not want him staying in the horse trailer or on his property anymore. Ramos became extremely angry and told defendant he was “going to start taking over and that [defendant’s] things were his things.”
One day, Ramos showed up after being out all night with the truck. He had a .30-.30 rifle and began threatening defendant with it. Ramos continued to use the truck without defendant’s permission, and left bullets in the ashtray. Defendant did not do anything about Ramos taking the truck because he was “just happy that he was gone.” He also thought Ramos might “cool off” and they could discuss things.
Meanwhile, defendant and Donette had another argument. Donette left defendant’s trailer and began staying in the horse trailer with Ramos. One night in early November, defendant removed the extension cord to the horse trailer and placed it in his trailer. He did not know Donette was in the trailer at the time. She became “frightened and hysterical” because there was no electricity in the horse trailer and it was very dark outside.
Ramos was not in the horse trailer when defendant removed the extension cord. When he returned, he discovered defendant had taken the extension cord and decided he was going to protect Donette. He became “more aggressive and more violent” toward defendant and “really, really crazy.” He came into defendant’s trailer, plugged the extension cord back in, and told defendant he wasn’t leaving. He began hitting defendant, throwing rocks at him, and saying he was going to “beat [defendant] up or blow [him] away.”
On another occasion, Ramos came into defendant’s trailer with a shovel, threatened defendant with it, and used it to break one of the windows of defendant’s Forerunner. Ramos took whatever he wanted from defendant’s trailer and would “make a mess out of the house.” Defendant finally called 911 from the pay phone at the market after Ramos jumped on the roof of his Forerunner, and hit defendant in the head with a stick through the sun roof.
As defendant was calling 911, Ramos came over in the truck with his rifle, got out, and approached defendant as if he was going to attack him. Defendant dropped the phone and got into his Forerunner. Ramos began chasing defendant in the truck. After a few minutes, the police arrived. The police told Ramos to leave and he did, but he returned a short time later.
When Ramos returned to the trailer park after the police told him to leave, he got Donette from the horse trailer and had her walk in front of him while he approached defendant with the .30-.30 rifle. He said to defendant, “Now I’m going to really beat you up, kick your ass because of what you just did.”
Defendant thought Ramos was becoming “irrational” due to his methamphetamine addiction. Fearing for his life, defendant called police again, and the police came out again. The police did not speak to Ramos this time, however, because he was hiding in Aleman’s trailer. Defendant told the police that Ramos was hiding in Aleman’s trailer and had a rifle, but the police ignored him. The police noticed that the tags on defendant’s Forerunner were expired, so they gave defendant a ticket and had his Forerunner towed away.
Defendant left in the truck and went to the Torres Martinez reservation. He stayed there with Tony and Lana Lovato for three days. While defendant was at the Lovatos, Ramos showed up with Donette. Ramos had his rifle with him and was “real, real hostile.” Tony asked Ramos to leave, and Ramos and Donette walked back to the trailer park.
About two hours later, defendant returned to his trailer. Defendant’s friend Heidi Grenzow followed defendant to the trailer park from the Lovatos’ home with her children. When defendant and Heidi arrived, Ramos and Donette were in the trailer park, and Ramos had a friend with him. Ramos was jumping on the hood of his friend’s car, telling defendant he was going to kill him, and that he was going to “kick his ass” for making him walk from the reservation. Ramos also wanted some money and to borrow the truck again.
Defendant again called 911 from the pay phone at the market. Heidi came into the market while defendant was dialing 911 to tell him she was leaving, because she was afraid and wanted to get her children out of there. Defendant left right after Heidi left, and before any officers arrived in response to his call. Defendant went back to the Lovatos’ residence.
Heidi testified. She confirmed that Ramos jumped on the hood of the car, that Ramos had a rifle, and that she came into the market while defendant was calling 911 to tell him she was leaving because she was afraid.
Defendant returned to his trailer the following morning, November 17. He noticed many things were missing from his trailer, including clothing, pillows, blankets, and jewelry. He ran into Ramos at around 11:00 a.m. Ramos had moved out of the horse trailer and into Aleman’s trailer. He was insulting defendant in Spanish, waving his rifle at him, and telling him he wanted money. Defendant did not give Ramos any money.
Defendant later went to the market and asked Ramirez to give him $1,500 from the money Ramirez was holding for him. Ramirez told defendant he had just given Ramos $500 “so he can move you out,” meaning move defendant out of his trailer. Ramirez also said that tomorrow he was “going to kill two birds with one stone.” Defendant did not know what Ramirez meant at the time. He left the market after Ramirez gave him $500 and refused to give him any more money.
Defendant went to a trailer occupied by the Valentins to use their phone. When defendant was in the Valentins’ yard, it was brought to his attention that Ramos was pointing a gun at him from the doorway of Aleman’s trailer. Defendant drove back to the Lovatos in the truck, and returned to his trailer around midnight that night. The Lovatos asked him to leave because he was being “loud” talking about Ramos, and their children had to sleep.
The Lovatos gave defendant a .22-caliber rifle for protection, and ammunition for the rifle. On his way home, defendant was stopped by sheriff’s deputies. Ultimately, two deputies, a California Highway Patrol officer, and a helicopter were on the scene. The officers searched the truck and found the rifle, which was unloaded. They also administered field sobriety tests, told defendant he had passed their evaluation, and allowed him to leave with the .22-caliber rifle.
Defendant claimed he told Deputy Darascavage that Ramos had threatened him with a rifle and asked the deputies to accompany him home so they could tell Ramos to leave. None of the officers accompanied defendant home. When defendant got home, he parked the truck by Aleman’s trailer, which was on the opposite side of the park from where he lived. He left the .22-caliber rifle on the floorboard. He had some beer with him and walked over to his trailer.
Deputy Darascavage denied defendant told him about Ramos or that Ramos had been threatening his life.
The outside sliding glass doors to defendant’s trailer did not have locks, but some of the doors inside the trailer had locks. Defendant was planning to lock himself in his bedroom area where no one could bother him. Before he was able to do so, he heard his dogs barking and looked outside. He saw Donette coming from the horse trailer, followed by Ramos, armed with a rifle. Donette wanted to use the bathroom, and defendant allowed her to come inside. Ramos ignored defendant when defendant told him not to come inside. Ramos took several beers and returned to the horse trailer with Donette.
Defendant then went to the patio of his trailer and sat on a recliner. A short time later, Ramos came back, this time without a rifle. Ramos turned off the porch light on the patio, then suddenly struck defendant, knocking him out. When defendant regained consciousness, Ramos was walking away from defendant’s trailer and toward Aleman’s trailer. It was around 1:30 a.m.
Defendant went to the market and again called 911. Five patrol cars showed up. The officers searched the area around the trailers, but could not find Ramos. They did not search Aleman’s trailer or any of the other trailers. When the officers left, defendant had lost his keys and was looking for them so he could leave again. He could not find his keys. He finally locked himself in his bedroom, had a beer, and rested for a while. He later found his keys in the cushion of a chair, and decided to leave.
At this point, defendant heard his dogs barking and heard Ramos walking inside his trailer again. Ramos threatened defendant again, but defendant “just shrugged it off” and left in the truck. He went to the casino, parked outside for a while, then returned home around 3:30 to 4:30 a.m.
Defendant went into his trailer to get a sleeping bag, returned to his truck, started it, and was planning to leave again. Ramos stood in front of the truck and told defendant he had done something to the truck to make it break down. Defendant turned off the truck and spoke to Ramos through the driver’s side window. Ramos told defendant that Ramirez had paid him $500 to kill defendant, and he was to receive another $2,000 “when the job was done.” He also told defendant that all of defendant’s things belonged to him and defendant “wasn’t going to see tomorrow.”
Defendant became very frightened and believed Ramos’s threat, because he knew Ramirez had given Ramos $500, and Ramirez had said he was going to “kill two birds with one stone.” Defendant drove away in the truck, toward Lake Cahuilla. He stopped and said his prayers. He loaded the .22-caliber rifle because Ramos told him he was going to kill him, and he again returned home. He was hoping Ramos would not be around, and he could relax until daylight came and call the police again.
When he returned home, he saw Donette in his yard. He parked the truck near his trailer and dropped the keys on the floorboard. While he was still inside the truck, he saw Ramos coming “really, really rapidly” toward him from Aleman’s trailer. He twice told Ramos to stop, but Ramos did not stop. He thought Ramos had the .30-.30 rifle with him. He put the .22-caliber rifle on the windowsill of the truck, and pulled the trigger. Ramos fell to the ground. Defendant got out of the truck and reloaded the rifle. He placed the muzzle of the rifle on Ramos’s forehead and shot him again.
After defendant fired the second shot and Ramos was on the ground, defendant realized Ramos did not have a rifle and was otherwise unarmed when defendant shot him. He searched Ramos’s pockets for a weapon and did not find one. It was around 4:45 a.m. and very dark outside. The headlights to his truck were off and no other lights were illuminating the area.
Defendant panicked and became hysterical. He was ranting and saying things like, “Why did you have to fuck with me?” “Why did this have to happen?” and “Why did you have to threaten me?” He did not remember saying, “one, two, pow.” As he was searching Ramos’s pockets, he found a methamphetamine pipe. He may have said it was a “meth pipe.”
He thought about calling the police but believed the police would not help him, so he loaded Ramos’s body into the truck. He took Ramos’s body to the desert at around 5:00 a.m., just as it was getting light outside. He cleaned out the truck and disposed of the clothing Ramos was wearing.
III. DISCUSSION
A. Aleman’s Preliminary Hearing Testimony Was Properly Admitted and, in Any Event, Was Harmless Beyond a Reasonable Doubt
Defendant claims the trial court violated his right to confrontation by admitting Aleman’s preliminary hearing testimony. He argues that Aleman was not unavailable as a witness at trial, because the prosecution failed to demonstrate that it exercised reasonable diligence in attempting to locate her and secure her presence at trial. On independent review, we conclude that the prosecution demonstrated that it exercised reasonable diligence in attempting to locate Aleman.
1. Relevant Background
A due diligence hearing was held on April 26, 2006, shortly before trial began. Jose Rodriguez, an investigator for the district attorney’s office, testified that he had attempted to locate Aleman without success. He explained that nearly 30 days earlier, on March 27, the prosecutor asked him to locate Aleman. He began his investigation on March 27.
He first checked Aleman’s last known address on “Calhoun” and found it was a “bad address.” He obtained the address from the prosecutor and the victim/witness advocate. The victim/witness advocate told him Aleman was no longer living behind Kennedy Market but was living at the Calhoun address. He had seen notes indicating his office had made contact with Aleman since she testified at the preliminary hearing on June 16, 2005.
Aleman’s aunt lived at the Calhoun address. Rodriguez spoke with the aunt there on March 29. The aunt told Rodriguez that Aleman was no longer living with her, and she had not seen Aleman in over a month. He again spoke to the aunt either in person or by phone at least seven times between March 29 and April 26. As of April 26, the aunt had not seen Aleman. Rodriguez did not “stake out” the Calhoun address or go there at unusual times. Nor did he speak to any of Aleman’s other family members or any of her friends or neighbors at the address. He did not know Aleman had a twin sister.
Rodriguez tried to find an updated address for Aleman through various databases, including Department of Motor Vehicles records, the “person locator” feature of WestLaw, and Genesis. None of these efforts were successful. Next, he contacted the Riverside County Sheriff’s Department, the police departments of Indio, Cathedral City, and Palm Springs, the local jail, Eisenhower and JFK hospitals, the probation department, the registrar of voters through WestLaw, and the white pages. He called 411 to see if she had a local phone number, and he checked a database that lists information on small claims, divorce decrees, and other court filings. These efforts were also unsuccessful. He rechecked each of these sources several times through April 26, but he found no updated contact information for Aleman. He did not contact the Social Security Administration, but he did contact the state Employment Development Department regarding whether Aleman had any former employers he could contact. He did not obtain any leads from this source.
Rodriguez was unaware that Aleman was reluctant to testify at defendant’s trial, although that was apparent from her preliminary hearing testimony. He did not read her preliminary hearing testimony. He never looked for Aleman at Kennedy Market or in the trailers behind the market where she was living at the time of the alleged offense. The victim/witness advocate’s office told him she was no longer living in the trailers. He did not know that Aleman had sometimes worked at the market. He did not speak to Ramirez to see whether he might know where Aleman might be. Nor did he determine whether she had been cashing checks at the market.
He did not check any local hospitals to see whether Aleman had given birth there several months earlier. Nor did he inquire of any local hospitals whether Aleman or her child had been there at any time before the date he contacted the hospitals. He only asked the hospitals whether Aleman was presently admitted. He also did not ask the Department of Public Social Services (DPSS) whether Aleman was receiving any aid. He knew, however, that Aleman had a one-year-old child, so he contacted DPSS to see whether they had an open case and any updated contact information. This inquiry yielded “negative results,” and he did not attempt to subpoena any documents from DPSS.
During the due diligence hearing, the court issued an order directing DPSS to provide contact information for Aleman. Before the close of the hearing on April 26, Rodriguez returned to court and advised that DPSS had produced the Calhoun address in response to the court’s order. DPSS was either unable or unwilling to disclose whether Aleman had an open case with them. But if it had an open case, the Calhoun address was where it would be sending correspondence. Rodriguez went to the Calhoun address that day and spoke to the aunt again. The aunt said she had not seen Aleman in several months and Aleman was not receiving any correspondence at that address. Rodriguez also contacted a neighbor of the aunt’s. The neighbor also said Aleman no longer lived at the address and she had not seen her for several months.
After hearing argument, the court ruled that Aleman was unavailable and granted the prosecution’s motion to have her preliminary hearing testimony read to the jury. Aleman’s preliminary hearing testimony was read to the jury on May 8, two weeks after the due diligence hearing. At that time, defense counsel renewed her objection to the reading of prior testimony. The prosecutor confirmed that no further efforts to contact Aleman had been made since April 26.
2. Applicable Law and Analysis
Although the confrontation clauses of the federal and state Constitutions guarantee a criminal defendant the right to confront witnesses against him (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), the right is not absolute. “An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination.” (People v. Cromer (2001) 24 Cal.4th 889, 892; Evid. Code, § 1291.)
“Under federal constitutional law, such testimony is admissible if the prosecution shows it made ‘a good-faith effort’ to obtain the presence of the witness at trial. [Citations.] California [law] allows introduction of the witness’s prior recorded testimony if the prosecution has used ‘reasonable diligence’ (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness.” (People v. Cromer, supra, 24 Cal.4th at pp. 892, 898; Evid. Code, § 240, subd. (a)(5).)
In determining whether the proponent of a missing witness’s prior testimony has used due diligence in attempting to locate the witness, the trial court must consider “the facts of the individual case” and “[t]he totality of efforts of the proponent to achieve [the] presence of the witness.” (People v. Sanders (1995) 11 Cal.4th 475, 523.) Relevant considerations include (1) the character of the proponent’s affirmative efforts, (2) whether the proponent reasonably believed before trial that the witness would appear willingly and therefore did not subpoena him when he was available, (3) whether the search was timely begun, and (4) whether the witness would have been produced if reasonable diligence had been exercised. (Ibid.) The proponent of the prior testimony has the burden of establishing the witness’s unavailability. (People v. Cummings (1993) 4 Cal.4th 1233, 1296.)
Whether due diligence has been exercised in a particular case is a mixed question of law and fact. Where, as here, the relevant facts are not in dispute, we independently review whether the undisputed facts amounted to an exercise of due diligence. (People v. Cromer, supra, 24 Cal.4th at p. 900.) Here, we conclude, as the trial court did, that the prosecution used due diligence in attempting to locate Aleman, notwithstanding the efforts the prosecution did not undertake.
As discussed, the prosecution began its search on March 27, more than four weeks before trial began. An earlier search was unwarranted, because the record indicated that the prosecution or the victim/witness advocate had been in contact with Aleman at some point since she testified at the preliminary hearing on June 16.
Furthermore, “[t]he prosecution is not required ‘to keep “periodic tabs” on every material witness in a criminal case. . . .’ [Citation.] Also, the prosecution is not required, absent knowledge of a ‘substantial risk that this important witness would flee,’ to ‘take adequate preventative measures’ to stop the witness from disappearing. [Citations.]” (People v. Wilson (2005) 36 Cal.4th 309, 342.) Defendant points to no evidence that the prosecution knew of a substantial risk that Aleman would disappear.
In addition, after Rodriguez promptly discovered that Aleman no longer lived with her aunt at the Calhoun address, he immediately undertook exhaustive efforts to obtain an updated address by searching various computer databases. He repeated these efforts several times through April 26. As of that date, DPSS did not have an updated address for Aleman, and if one had been available through any public records, it appears that Rodriguez would have found it. These efforts constituted reasonable or due diligence, under the circumstances of this case.
As defendant points out, no additional efforts to locate Aleman were undertaken between April 26, the date of the due diligence hearing, and May 8, the date Aleman’s prior testimony was read into the record at trial. Rodriguez also did not attempt to locate Aleman by speaking to Ramirez, or by looking for her at Kennedy Market or in the trailers behind the market, at any time.
Although we believe the prosecution should have attempted to locate Aleman by asking for her at the market and trailer park, its failure to pursue this line of inquiry does not undermine its otherwise reasonable and diligent efforts to locate Aleman. “[T]he prosecution need not exhaust every potential avenue of investigation to satisfy its obligation to use due diligence to secure the witness.” (People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1641, fn. omitted, disapproved on other grounds in People v. Cromer, supra, 24 Cal.4th at p. 901, fn. 3; People v. Cummings, supra, 4 Cal.4th at p. 1298.)
Moreover, there is no compelling reason to believe that Aleman would have been located had the prosecution searched for her at the market or trailer park. Aleman had no updated address as of April 26, and was not known to have visited the market or trailer park in the recent past. The trailer she once lived in had no electricity, and she testified at the preliminary hearing that Ramirez was “always kicking [her] out.” She was reluctant to testify, and probably did not want to be found.
Our conclusion is based on settled law. “An appellate court ‘will not reverse a trial court’s [due diligence] determination . . . simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where [as here] the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” [Citation.] The law requires only reasonable efforts, not prescient perfection.’ [Citation.]” (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
3. No Prejudice
In any event, any error in admitting Aleman’s preliminary hearing testimony was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705.) Defendant did not dispute that he shot and killed Ramos. Instead, he claimed he shot Ramos in self-defense. Aleman’s preliminary hearing testimony could not have affected the jury’s rejection of defendant’s self-defense claim, because she did not see what occurred between defendant and Ramos immediately before defendant shot Ramos. She only said she heard two men arguing before she heard the first shot fired, and that one of the men was defendant. She also gave no testimony concerning the ongoing altercation between defendant and Ramos.
B. The Tape Recording of Aleman’s 911 Call Was Properly Admitted and Was, in Any Event, Harmless Beyond a Reasonable Doubt
Defendant next claims that the admission of the tape recording of Aleman’s 911 call violated his right to confrontation. In this regard, he restates his claim that Aleman was unavailable as a witness, which we reject for the reasons discussed. Moreover, he claims he did not have an opportunity to cross-examine Aleman at the preliminary hearing regarding her 911 statements, because the prosecutor did not ask Aleman about the 911 call on direct examination. He also maintains that Aleman’s statements on the 911 tape were testimonial.
We conclude that the 911 tape was properly admitted. In sum, even if Aleman’s statements on the 911 tape were testimonial, a question we need not and do not decide, their admission did not violate defendant’s confrontation right because (1) as discussed, Aleman was unavailable as a witness, and (2) the defense had an opportunity to cross-examine her at the preliminary hearing regarding her 911 call and her statements to the 911 operator. In any event, the admission of the 911 tape was harmless beyond a reasonable doubt.
1. Relevant Background
Aleman called 911 at 5:30 a.m. on November 18. In response to the 911 operator’s questions, she said she believed she may have just witnessed defendant murder someone. She said she heard one shot, heard defendant say, “One, two,” and then heard a second shot. She then heard defendant say, “I told you not to . . . fuck with me.” She saw defendant take the victim’s money, saw defendant dragging the victim, and heard defendant say he was going to “go bury his ass.” She believed defendant put the victim in a white Ford pickup truck and was on his way to Indio. She said the incident happened, “[n]ot even fifteen minutes ago.” The operator told Aleman that officers would be sent to her location, and ended the call.
Shortly before trial in May 2006, the prosecution sought to admit the 911 tape and transcript as a spontaneous statement. Defense counsel objected. After discussing the matter at length, the trial court ruled that the 911 tape was admissible. The court specifically ruled that Aleman’s 911 statements qualified as spontaneous statements (Evid. Code, § 1240), that Aleman was unavailable as a witness, and that the defense had an opportunity to cross-examine her at the preliminary hearing concerning what she had seen and heard at the time of the shooting. The court did not rule whether the 911 statements were testimonial.
Defendant does not challenge the trial court’s determination that Aleman’s 911 statements qualified as spontaneous statements. (Evid. Code, § 1240.)
2. Applicable Law and Analysis
“The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.’ This federal constitutional right to confront adverse witnesses in a criminal prosecution applies to the states [citation], and is also guaranteed independently by the California Constitution (Cal. Const., art. I, § 15) . . . .” (People v. Brown (2003) 31 Cal.4th 518, 537-538.) “The primary reason an accused is entitled to confront adverse witnesses is to permit cross-examination. [Citation.]” (Ibid.)
In Crawford v. Washington (2004) 541 U.S. 36, 53-54, 59, 68-69 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford), the high court held that the confrontation clause bars the admission of “testimonial” statements of a witness unless (1) the witness is unavailable to testify at trial, and (2) the defendant had a prior opportunity to cross-examine the witness. Crawford thus reaffirmed a long-standing exception to the right to confront adverse testimonial statements. (People v. Wilson, supra, 36 Cal.4th at p. 340.)
Evidence Code section 1291 reflects this long-standing exception. It states that former testimony is not rendered inadmissible hearsay if the declarant is “unavailable as a witness,” and “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (Evid. Code, § 1291, italics added.)
It follows that, even if Aleman’s statements on the 911 tape were testimonial, their admission through the 911 tape did not violate defendant’s right to confrontation if (1) Aleman was unavailable as a witness at trial, and (2) the defense did have a prior opportunity to cross-examine Aleman regarding her 911 statements. The prosecution met its burden of showing that Aleman was unavailable as a witness at trial. The critical question is therefore whether the defense had a prior opportunity to cross-examine Aleman regarding her 911 statements.
Defendant maintains that he did not have an opportunity to cross-examine Aleman regarding her 911 statements at the preliminary hearing, because the prosecutor “never touched on this subject.” Thus, he argues, the scope of his cross-examination of Aleman was limited by the scope of the prosecutor’s direct examination. (Evid. Code, §§ 761, 773 [the scope of cross-examination is limited to matters within the scope of the direct examination].) This argument assumes there was a substantive distinction between what Aleman testified to at the preliminary hearing and her statements to the 911 operator. There was not.
At the preliminary hearing, the prosecutor directly examined Aleman concerning what she saw and heard at the time of the shooting. She did not ask Aleman about the 911 call or her statements to the 911 operator per se. But she did cover the substance of what Aleman told the 911 operator, and more. She asked Aleman about details Aleman did not mention to the 911 operator and was not asked about during her brief 911 call, including, for example, what she was doing immediately before the shooting. In turn, defense counsel then thoroughly cross-examined Aleman concerning what she saw and heard at the time of the shooting.
On direct examination at the preliminary hearing, Aleman testified she had just come home from the casino and was going to sleep inside her trailer when she heard “people arguing,” including defendant. She heard one gunshot and got up to see what was going on. She then heard a second shot, and heard defendant say something like “one, two, pow.” (On the 911 tape, she indicates that she heard “One, two,” after she heard the first shot.) She looked outside and saw what she believed was a dog lying on the ground and saw Donette “walking around.” She could not see very well because it was dark. She could hear defendant “mumbling things.” Defendant was saying “he shouldn’t have messed with him or fucked with him . . . .” She then heard defendant say he was going to search “him,” referring to the person on the ground. At that point, she realized it was not a dog on the ground. She was afraid to go outside, and did not know whether the person on the ground was dead or not. As it got lighter, she saw defendant loading the body into his truck and hitting the body.
On cross-examination, Aleman testified that she heard male voices arguing before she heard the first gunshot. She also said she knew that defendant and Ramos both had guns. She repeatedly said it was too dark for her to see what was going on when she first looked outside. She said she and defendant did not get along, and she did not know Ramos very well.
It is thus apparent that the 911 tape and Aleman’s statements to the 911 operator were not outside the scope of the prosecution’s direct examination at the preliminary hearing. Aleman told the 911 operator essentially the same things she testified to at the preliminary hearing. Moreover, defense counsel did not even attempt to cross-examine Aleman concerning her statements to the 911 operator. Instead, she focused on the substance of her statements to the 911 operator, that is, what she saw and heard at the time of the shooting.
Thus here, defendant had a prior opportunity to cross-examine Aleman concerning her statements to the 911 operator at the preliminary hearing. It follows that the admission of the 911 tape did not violate defendant’s right to confront adverse witnesses, even if Aleman’s statements to the 911 operator were testimonial. The prerequisites of unavailability and prior opportunity to cross-examine were both satisfied.
3. No Prejudice
In any event, the admission of the 911 tape was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Cage (2007) 40 Cal.4th 965, 991.) Aleman’s statements to the 911 operator were cumulative to her preliminary hearing testimony and added nothing of any substance to that testimony. And for the reasons discussed, the admission of that testimony was harmless beyond a reasonable doubt.
C. The Rebuttal Evidence That Defendant Had a Reputation for Being a Thief and a Drug User Did Not Deprive Defendant of a Fair Trial, and Was Harmless
Defendant further claims the prosecutor committed prejudicial error and deprived him of a fair trial by failing to admonish two of her rebuttal witnesses not to mention that defendant had a reputation for being a thief and using drugs. He specifically claims that the trial court erroneously denied his motion for a mistrial on the grounds that the erroneous introduction of this evidence deprived him of a fair trial. For the reasons that follow, we reject this claim.
1. Relevant Background
After defendant testified, but before the prosecutor called any rebuttal witnesses, defendant moved to exclude any rebuttal testimony concerning his character or reputation for being a thief or a drug user. The defense argued that such bad character evidence would be more prejudicial than probative because it had little to do with whether defendant shot Ramos in self-defense. The prosecutor initially agreed not to admit any reference to defendant’s drug use, but argued his reputation for being a thief was permissible to impeach his credibility as a witness.
After some discussion, the prosecutor did not concede that evidence of defendant’s reputation for being a thief should have been excluded. Still, she agreed to admonish her rebuttal witnesses not to say anything about defendant being a drug user or a thief. The parties also agreed that the rebuttal witnesses could testify that defendant had a reputation for violence (Evid. Code, § 1103, subds. (a)(2) & (b)) and for being a liar (Evid. Code, § 785). At the end of the discussion, the prosecutor said she would make a note, reminding herself to tell her witnesses not to mention anything about defendant being a thief or a drug user.
(a) Rebuttal Witness Moon
The prosecution’s first rebuttal witness was Christian Moon. Moon had known defendant since 1993, and had met him through playing polo. Moon knew defendant’s nickname was “Pinocchio.” When the prosecutor asked Moon whether defendant had a reputation “as to why he was called Pinocchio,” Moon responded “[y]es.” Next, the prosecutor asked, “[I]n general[,] what was his reputation?” Moon replied that defendant’s “reputation was for somebody who stole or lied basically, and that was why he was called Pinocchio.” (Italics added.)
Moon was next asked whether he had an opinion regarding “defendant’s character as it relates toward violence or peacefulness.” Moon said he initially respected defendant, but his opinion of defendant changed after many years of knowing him. When asked whether his opinion regarding defendant’s “character for violence or his temperament” had changed, Moon responded, “I didn’t really regard [defendant] as violent but treated him with caution from about [1995] onwards, simply because I knew that [defendant] had gone off the deep end as far as drugs were concerned.” (Italics added.)
At this point, defense counsel objected, moved to strike, and requested a sidebar conference. Moon interjected, “I’m not speculating.” The prosecutor asked Moon to please just answer her questions. A reported sidebar conference was immediately held in the hallway outside the courtroom. There, the court observed the prosecutor had just agreed to tell her witnesses not to mention “thief or drugs,” and Moon had just mentioned both. Defense counsel moved for a mistrial.
The prosecutor explained that she did not believe it was necessary to tell Moon not to mention thievery or drug use, because her witness report for Moon did not mention that he had ever mentioned these things. She intended to admonish another rebuttal witness, Gordon Brown, because Brown’s report included a reference to such matters. Moon’s answers were a surprise to her; she did not expect him to say anything about thievery or drug use. In examining Moon, she was trying to keep her questions narrow to avoid these subjects and did not, in her opinion, intentionally disobey the court’s order. She suggested that the jury be admonished to disregard Moon’s mention of thievery and drug use, and she would speak with him.
Defense counsel argued that the bell had already been rung, and admonishing the jury to disregard Moon’s mention of thievery and drug use, and his gratuitous follow-up comment that he “wasn’t speculating” about the drug use, would not remedy the matter but only “highlight” and exacerbate the problem. The trial court granted the motion to strike, and took the motion for mistrial under submission. It denied defendant’s alternative motion to strike Moon’s testimony and exclude him as a witness.
The prosecutor then explained to Moon, in the presence of the court and counsel, that he could not mention thievery or drug use, and she was next going to ask him about a specific incident in which defendant attacked him. In the presence of the jury, the court struck the questions and answers following Moon’s answer that defendant had a nickname, and admonished the jury to treat those questions and answers as though they had not heard them. The court did not have Moon’s stricken testimony reread.
Moon’s testimony resumed. Moon said defendant had a reputation for being a liar, and his reputation for violence was that “[h]e would fight, and the fight would get to where he would use a weapon.” Moon said, “[w]hatever was nearest him he would use as a weapon.” Moon then described an incident of violence that occurred in August 2003. Moon and defendant got into a fight in which defendant struck Moon with a polo mallet, and Moon knocked out some of defendant’s teeth. Defendant also smashed the windshield of Moon’s car with a brick and threw another brick at Moon’s head, missing him. Defendant, but not Moon, was charged in connection with the incident. Defendant had never threatened to kill Moon, beat him up, or hurt him, and Moon had never seen defendant with a gun.
(b) Rebuttal Witness Cunningham
Another rebuttal witness, Scott Cunningham, had known defendant since the mid- 1980’s, also through playing polo, and knew his nickname was Pinocchio. Before Cunningham testified, the prosecution told him not to mention anything about defendant being a thief or a drug user. But when Cunningham was asked whether he knew why defendant was called Pinocchio, he replied, “Well, I think he got it as a child for—because he’d lie and steal, that sort of stuff.” (Italics added.)
Defense counsel objected and renewed her motion for mistrial. The court took the motion under submission. At this point, the court had not ruled on defendant’s motion for mistrial regarding Moon’s testimony.
Cunningham further testified that defendant had a reputation among the polo community for being a liar and a violent person. In 1997, defendant threw a drink in Cunningham’s face after Cunningham made a comment about defendant playing on a polo team with someone who was not defendant’s friend. As Cunningham was leaving in his car, defendant threw a pool ball through Cunningham’s front passenger window, shattering it. Defendant was yelling at Cunningham, “I’m gonna get you, I’m gonna get you.” Defendant did not injure Cunningham in the 1997 altercation. Cunningham had never seen defendant with a gun, and did not know defendant to have a reputation for threatening people with guns.
(c) The Trial Court’s Ruling on the Motion for Mistrial
After Cunningham testified, the court heard argument on defendant’s motion for mistrial. Defense counsel reiterated that her motion was based on Moon’s statements that defendant had a reputation for being a thief and a drug user, and Cunningham’s brief comment that defendant had a reputation for being a thief. Defense counsel conceded that Moon’s statements were much worse than Cunningham’s brief reference to defendant having a reputation for being a thief. She again argued that admonishing the jury to disregard any of this evidence was exacerbating the problem by highlighting it to the jury.
The prosecutor conceded that the evidence of defendant’s drug use was improper, but again argued that the evidence that he was a thief was admissible to impeach his credibility. In any event, the prosecutor argued, a mistrial was unwarranted because the jury had been admonished to disregard Moon’s statements that defendant had a reputation for being a thief and a drug user, and his gratuitous comment that he was not “speculating” about defendant’s drug use. In addition, the jury heard defendant admit, under cross-examination, that he had a prior felony conviction for possessing stolen property, a crime involving theft. And the crime involved property that belonged to Moon.
The court denied the motion. It noted there was strong evidence that defendant “committed a homicide and tried to suppress the evidence against him,” and the evidence also showed that defendant admitted a prior felony conviction for receiving stolen property, a crime involving theft. Regarding Moon’s comment that defendant had gone “off the deep end” with using drugs, the court noted that other witnesses had testified that defendant “acted bizarre.”
2. Applicable Law
Prosecutorial misconduct or error is reversible under the federal Constitution when it “infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “To establish prosecutorial misconduct, it is not necessary to show the prosecutor acted in bad faith, but it is necessary to show the right to a fair trial was prejudiced.” (People v. Nguyen (1995) 40 Cal.App.4th 28, 35-36, citing People v. Bolton (1979) 23 Cal.3d 208, 213-214.)
“Although most cases involve prosecutorial or juror misconduct as the basis for [a mistrial] motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice. [Citations.]” (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) “A trial court should grant a mistrial ‘only when “‘a party’s chances of receiving a fair trial have been irreparably damaged.’”’” (People v. Avila (2006) 38 Cal.4th 491, 573, citing People v. Ayala (2000) 23 Cal.4th 225, 282.) That is, “‘“[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.]”’” (People v. Harris, supra, at p. 1581; accord, People v. Avila, supra, at p. 573.)
“‘A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that “the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.” [Citation.]’” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)
And, “[w]hether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) “Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of discretion.” (People v. Avila, supra, 38 Cal.4th at p. 573, citing People v. Valdez (2004) 32 Cal.4th 73, 128.)
3. Analysis
Defendant was not deprived of a fair trial or due process of law by the introduction of Moon’s statements that defendant had a reputation for being a thief and drug user, or by Cunningham’s brief reference to defendant having a reputation for being a thief. Nor did the trial court abuse its discretion in denying the motion for mistrial based on this testimony.
Moon’s and Cunningham’s improper statements were curable by striking them and admonishing the jury to disregard them. And as discussed, the trial court struck Moon’s improper statements and, over defense counsel’s objection, admonished the jury to disregard them. We presume that the jury followed the court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
As also discussed, the court neither struck nor admonished the jury to disregard Cunningham’s brief reference to defendant being a thief, because defense counsel objected to calling the matter to the jury’s attention. Thus, defendant has waived any claim of error regarding Cunningham’s statement. (People v. Valdez, supra, 32 Cal.4th at pp. 124-125.)
In any event, it is highly improbable that defendant would have realized a more favorable result had the jury not heard Cunningham’s reference to defendant having a reputation for being a thief. (People v. Harris, supra, 22 Cal.App.4th at p. 1581 [applying reasonable probability standard of harmless error to erroneous introduction of evidence that defendant had been on parole].)
During defendant’s testimony, the jury heard defendant admit he had been convicted of possessing stolen property, a crime involving theft. (§ 496.) The evidence of this prior conviction was admitted to impeach defendant’s credibility when he testified. Furthermore, Cunningham’s brief comment that defendant had a reputation for being a thief added little to the evidence that he had been convicted of possessing stolen property.
D. No Cumulative Trial Error
Defendant claims the cumulative effect of the errors in admitting and excluding evidence denied him a fair trial. (People v. Hill (1998) 17 Cal.4th 800, 844.) Having found no single instance of error, we reject this contention. (People v. Tafoya (2007) 42 Cal.4th 147, 199.)
E. The Upper Term Sentences Were Properly Imposed
Lastly, defendant claims his upper term sentences for his manslaughter conviction (11 years) and personal use finding (10 years) violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We conclude that the upper terms were properly imposed, based on defendant’s recidivism.
In Cunningham, the high court held that the imposition of an upper term sentence under California’s determinate sentencing law (DSL), based on a judge’s finding by a preponderance of the evidence that circumstances in aggravation outweighed circumstances in mitigation, violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 871.) The court reasoned that any fact that exposes a defendant to a greater potential sentence than the statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Id. at pp. 863-864.) The court also held that the middle term is the maximum term a judge may impose under the DSL without the benefit of facts reflected in the jury’s verdict—that is, facts found true by a jury beyond a reasonable doubt—or admitted by the defendant. (Id. at p. 868.)
In response to Cunningham, the California Legislature amended the DSL by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40).) Our references to section 1170 or other provisions of the DSL are to the statutes as they read prior to these amendments. Also, in response to the Legislature’s amendment of the DSL, the Judicial Council amended the sentencing rules effective May 23, 2007. Our references to the California Rules of Court are as they read prior to these amendments. All further references to rules are to the California Rules of Court.
Following Cunningham, the state Supreme Court issued companion decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). The court in Black II held that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (Black II, supra, at p. 815, citing People v. Os band (1996) 13 Cal.4th 622, 728; see § 1170, sud. (b).)
This means that a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, supra, 41 Cal.4th at p. 812; Sandoval, supra, 41 Cal.4th at pp. 838-839.) “[A]ny additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, at p. 812; Sandoval, supra, at p. 838-839.)
An aggravating circumstance is one that “makes the offense ‘distinctively worse than the ordinary.’ [Citations.]” (Black II, supra, 41 Cal.4th at p. 817.) Accordingly, aggravating circumstances include not only those listed in rule 4.421, but also “[a]ny other factors statutorily declared to be circumstances in aggravation” (rule 4.421(c)), and any other facts “reasonably related to the decision being made” (rule 4.408(a)).
The court in Black II explained: “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that 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 pp. 815-816, italics added.)
In sentencing defendant to the upper terms for his manslaughter conviction and personal use enhancement, the trial court found, among other aggravating factors, that (1) defendant was on probation “in about five different cases” at the time of the offense (rule 4.421(b)(4)); and (2) defendant had two prior felony convictions as an adult and, due to his use of a firearm in this case, his adult convictions were numerous and of increasing seriousness (rule 4.421(b)(2)).
These findings rendered defendant eligible for both upper terms. Specifically, the finding that defendant’s adult convictions were numerous rendered defendant eligible for the upper term on either his manslaughter conviction or his personal use enhancement, notwithstanding whether his adult convictions were also of increasing seriousness. (See Black II, supra, 41 Cal.4th at pp. 818-820.) The finding that defendant was on probation at the time of the crime rendered defendant eligible for the upper term.
As the Black II court explained, the determination that a defendant has suffered prior convictions, and whether those convictions are “‘numerous or of increasing seriousness’ (. . . rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. 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.’” (Black II, supra, 41 Cal.4th at pp. 819-820, fn. omitted, citing People v. McGee (2006) 38 Cal.4th 682, 706.)
Although the precise scope of the recidivism exception to the Apprendi rule has not been comprehensively defined, it clearly encompasses the trial court’s findings that defendant’s prior convictions as an adult were numerous, and that he was on probation at the time he committed the current offense. We therefore affirm the trial court’s imposition of defendant’s upper term sentences.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., McKinster, J.