Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR011617CS
Richman, J.
Defendant Michael Thomas Gorman was convicted by a jury of felony murder and burglary. On appeal, he argues: (1) that the jury instructions on felony murder did not adequately advise the jury of the need for a causal connection between the felony and the killing; (2) that the trial judge abused his discretion in admitting evidence that defendant used a racial slur to refer to the victim after his death; (3) that defendant’s trial counsel’s failure to object to the admission of defendant’s pretrial statement to the police constituted ineffective assistance of counsel; and (4) that in selecting the upper term on the burglary count and directing that defendant’s sentences be served consecutively, the trial judge inappropriately relied on aggravating factors not found by a jury, in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
This is defendant’s third appeal. On January 27, 2005, we filed an opinion in which we agreed with defendant that imposition of the aggravated term for the burglary violated Blakely. (People v. Gorman (Jan. 27, 2005, A102310) [nonpub. opn.] (Gorman I).) The California Supreme Court vacated our opinion and ordered us to reconsider that issue in light of People v. Black (2005) 35 Cal.4th 1238 (Black I). On December 21, 2005, we filed an opinion in which we concluded that, under Black I, there was no Blakely error, and we affirmed the judgment. (People v. Gorman (Dec. 21, 2005, A102310) [nonpub. opn.] (Gorman II).)
In Cunningham v. California (2007)549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court held that Black I was an erroneous application of Blakely. We granted defendant’s motion to recall our remittitur in Gorman II—which the Attorney General did not oppose—in order that we could again examine the Blakely issue in light of Cunningham. The parties were given the opportunity to file additional briefing on the issue.
On July 19, 2007, our Supreme Court issued decisions in People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We provided the parties another opportunity to file letter briefs discussing the impact of these decisions to this appeal, which we have received and reviewed. We now affirm.
FACTS AND PROCEDURAL BACKGROUND
On April 2, 2001, defendant and his friend Rachael Lane paid a visit to a man they knew named Shawn Harrison who occasionally sold methamphetamine. Troy Russell, Harrison’s former brother-in-law, was also visiting Harrison at the time. Harrison told his visitors that, earlier that day, he had sold some methamphetamine to a man (later identified as Bruce James) who was staying at a nearby motel; he added that the man appeared to have a lot of cash and was interested in obtaining the services of a prostitute. Russell and Harrison had committed robberies together before, and the group discussed the idea of taking James’s money from him. Russell was not interested in the idea, but defendant asked Harrison for James’s room number at the motel. According to Rachael Lane, the discussion about “ripping [James] off” was just a joke, and was not serious. Russell testified that he never heard defendant use the word “rob.”
All further references to dates are to the year 2001 unless otherwise specified.
Later that evening, around 7:00 or 8:00 p.m., defendant and Rachael Lane went to the apartment of Amber Ladue, where they encountered Rachael Lane’s brother, Michael Lane, and his girlfriend, Florence Laurel Anderson, who was a friend of Ladue’s. Ladue lived not far from the motel where James was staying. Lane and Anderson were staying with their friend Gordon Combs in another apartment in the same building, and sometimes borrowed Ladue’s apartment so they could have some privacy. Lane and Anderson asked defendant and Rachael Lane if they had any drugs, and defendant responded by suggesting that they could obtain cash from James, either by fraudulently proposing to get drugs for him and keeping the money, or by offering him Anderson’s services as a prostitute.
Michael Lane was also a friend of defendant’s and was the actual perpetrator of the murder of which both he and defendant were convicted. He was also a principal witness for the prosecution at defendant’s trial. For simplicity and clarity, we refer to Michael Lane as Lane, and to Rachael Lane by her full name.
Defendant, Rachael Lane, Russell, Lane, Anderson, Ladue, and Combs were all methamphetamine users at the time of these events.
Lane did not want to feign a drug deal with James. Anderson was willing to act (or at least pose) as a prostitute to get James’s money, but Lane did not want her to do so. Nonetheless, Anderson and Lane agreed with defendant that the three of them would go to the motel, that Anderson would offer James her services as a prostitute, and that defendant would receive a share of whatever money Anderson and Lane could obtain from James, or of the drugs they would buy with it. Lane denied that they discussed robbing James.
There was a conflict in the evidence as to whether Anderson had previously worked as a prostitute, and as to whether the plan was that she would really offer her services as such to James, or merely pretend to be willing to do so. Lane testified at trial that Anderson fairly frequently sold her services for drugs or for money to buy drugs, and that he had accompanied her, for her protection, on a few prior occasions when she had conducted such a transaction with a stranger. He had told the police at one point during their investigation that Anderson never worked as a prostitute while she was involved with him, but he testified at trial that this statement was true only in the sense that Anderson prostituted herself solely to obtain drugs (or money for drugs), and not as a regular occupation. In any event, there is substantial evidence in the record that Lane and Anderson gained entry to James’s motel room by suggesting to him—whether truthfully or not—that Anderson was available as a prostitute. Defendant does not argue otherwise on this appeal.
Before going to the motel, either Lane or Anderson asked Ladue for a knife with which to protect themselves, and told Ladue that defendant was “sending them [Anderson and Lane] on a mission.” Defendant was there when they did so, but did not say anything. Ladue gave Lane a knife, and then went to sleep.
There was a conflict in the testimony regarding whether Ladue was in her apartment when defendant, Lane, and Anderson discussed their plan. Lane testified that she arrived just as they were leaving. Ladue testified that she was in the apartment asleep, and they woke her up to ask for the knife.
Lane, Anderson, and defendant then walked together to the motel where James was staying. Lane and Anderson knocked on the door of James’s room, telling him that “Shawn sent me,” while defendant (as he had told Lane he planned to do) entered the room next door to James’s in order to visit his friend Kelly Eyerley. It is undisputed that defendant was not in James’s room during the ensuing events, and was not present when Lane killed James.
Lane testified as follows regarding the ensuing events. James appeared to be drunk when he came to the door to let him and Anderson into the room. Lane and Anderson were surprised and upset to learn that James was Black, a piece of information that Harrison had not shared with defendant. Lane did not like or trust Black people, because his grandmother had been raped by a couple of Black men when she was young. Nonetheless, Anderson proceeded to offer James her sexual services for money. James accepted, but was unwilling to allow Lane to remain in the room to protect Anderson during the activity, so Lane went into the bathroom in order to remain nearby. Shortly thereafter, Lane heard Anderson scream, and emerged from the bathroom to see James beating her. Lane then “freaked out,” and stabbed James at least five times, killing him. Lane and Anderson then left the motel without taking the only money they saw in James’s room, which amounted to only $20. Anderson took James’s cigarettes and lighter.
This testimony was corroborated by a forensic analysis showing that James had a blood-alcohol level of .26 percent when he died.
According to Ladue, defendant returned to Ladue’s apartment alone, some 20 minutes after he had left for the motel. Ladue testified that defendant told her he was worried that something had gone wrong, because Lane and Anderson had not yet returned. Shortly thereafter, Lane and Anderson arrived, awakening Rachael Lane, who had been asleep on Ladue’s couch. Both Lane and Anderson were very upset, and Anderson was crying. Lane had a large knife, which he hid under a sofa cushion; he told defendant that he had killed James. Defendant appeared to Lane to be shocked upon hearing this, but he nonetheless asked where James’s money was; Lane replied that he did not know.
Lane also testified that he and Anderson returned to Ladue’s separately from defendant. Rachael Lane testified that defendant, Lane, and Anderson all returned to Ladue’s apartment together, but she also testified (as did Lane) that she had fallen asleep, and awoke again when they arrived.
Upon hearing that James had been killed, defendant called Harrison, at Lane’s request, and asked him to come and see him. Defendant and Lane had an argument about whether they should return to the motel room. Rachael Lane testified that it might have been defendant who wanted to do so, but she was not sure. According to Lane, however, he was the one who persuaded defendant to go back. Lane and Anderson were angry because they believed that defendant had set them up by telling them incorrectly that James had a lot of money, and by not telling them that he was Black.
Lane told the police shortly after James’s death that it was defendant who had insisted they return to the motel, claiming James had $500 or $600 in his possession. In his trial testimony, however, Lane contended that he had been lying when he said this, in an effort to blame someone else for James’s death. As discussed post, defendant told the police he had gone back to the motel at Lane’s insistence because he was afraid of Lane at that point.
Ultimately, Lane, Anderson, and defendant returned to the motel, accompanied by Harrison. Lane entered James’s room by climbing in the bathroom window, and then opened the door to let in the others. Lane went through James’s pockets and belongings and took his necklace, shoes, wallet, and a small sum in cash. Defendant did not take anything, but according to Lane, he helped Lane flip over the mattress, and either took James’s credit card or accepted it from Lane.
Lane’s testimony was inconsistent regarding how, or even whether, defendant obtained James’s credit card. Russell testified that defendant told him he had the card, but Russell never actually saw defendant with it. Russell did see Harrison with the credit card, however; Harrison was holding it when he told Russell that he and defendant had bought gas for Russell’s truck, which Harrison had borrowed to give defendant a ride. The prosecution introduced evidence that the credit card had been used to buy gas at a nearby gas station on the morning after James’s death.
Later, in the early hours of the morning on April 3, Lane and Anderson went to Combs’s apartment. Lane testified that he told Combs a version of the events that was consistent with his trial testimony, but he also admitted he might have told Combs (untruthfully, according to Lane’s trial testimony) that they had gone to the motel to rob James. According to Combs, Lane not only told him that he had just killed a man at the motel, but also averred that he and Anderson had gone there to rob the man by having Anderson pose as a prostitute. Lane also told Combs that he had remarked to Anderson on the way to the motel that if things got out of hand, he might have to stab the intended robbery victim.
Ladue testified that around noon on April 3, she awoke and found Lane cleaning her knife, which he then wrapped in newspaper. Lane testified that he told Ladue that he had killed a man at the motel with Ladue’s knife. Ladue testified that Lane also told her he had gone to the motel to rob the man. Ladue drove Lane and Anderson to a jetty or pier, where Lane threw the knife into the ocean, and then to a remote area in the woods, where Lane and Anderson burned their clothes.
James’s body was discovered in his room by the motel housekeeper shortly after 10:00 a.m. on April 3. He had been stabbed four times in the back and once in the elbow, and had bled to death. His room had been ransacked, and there were signs of a forced entry through the bathroom window.
A day or two later, Russell encountered defendant again. By then, word of the killing at the motel had circulated in the area, and defendant appeared to Russell to be worried about what had happened. Russell testified that defendant told him he had gone to the motel with Lane and Anderson, but had gone into the room next door to visit Eyerley. Russell said defendant told him that he had heard sounds of a “loud ruckus” from the next room, and that Lane had ended up stabbing the victim during a struggle. Russell interpreted what defendant said as indicating that Lane and Anderson had robbed the victim, but defendant did not actually use the word “rob.” Defendant complained to Russell that Lane and Anderson had only given him (or him and Harrison) a credit card and a small sum of money (about $20), and that he believed they were “holding out on him.” Russell also testified that defendant and Harrison made racially derogatory remarks about the victim, referring to him as “just another dead nigger, porch monkey, dead cricket, something like that.”
Russell acknowledged at trial that he did not like defendant. Russell had an extensive criminal record and had been granted immunity for as many as 30 uncharged robberies in exchange for his testimony. Lane testified he had never heard defendant use the word “nigger.”
On April 10, about a week after James was killed, a police detective interviewed Lane and Anderson, and learned from them that defendant had been involved in the events leading up to the killing. The police spoke with defendant’s family and asked them to have defendant to call them. On April 11, defendant voluntarily went to the police station to be interviewed. Defendant was not given any Miranda warnings prior to the interview. A tape recording of the interview was played to the jury at defendant’s trial. Defendant’s trial counsel did not object to the admission of the tape recording.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
In his interview with the police, defendant initially told a story about the events that the police told him they knew was not true. The police then told defendant that Lane and Anderson had been arrested, and had told them defendant was not in the room when James was killed. Defendant then acknowledged that he had told Lane and Anderson about Harrison’s report that James had a lot of money and wanted a prostitute. He also admitted that he had proposed to Lane and Anderson that they obtain James’s money—either by promising to buy drugs with it and not returning, or by stealing it while Anderson distracted James with sex—and give defendant a share of the proceeds. He acknowledged going to the motel with Lane and Anderson, and spending a short time in Eyerley’s room before returning to Ladue’s apartment. He said he had not heard anything from James’s room except a little bang on the wall, and that he had told Eyerley that Lane and Anderson were going to get James’s money by pretending they would use it to buy drugs for him.
Defendant also acknowledged in the interview that after finding out that Lane had stabbed James, he went back to the motel with Lane at Lane’s insistence; he averred that he was afraid Lane would stab him if he refused. Defendant explained that he called Harrison to accompany them to the motel, and that when they got there, he knocked on James’s door but received no response. He said Lane and Anderson then went in through the window and let him and Harrison in through the door. Defendant contended he had only watched while Lane, Anderson, and Harrison rummaged through James’s belongings and took his money, shoes, and jacket. Defendant vehemently denied having had any intent that the group would obtain James’s money by any means other than pretending to use it to buy drugs for James.
Defendant, Lane, and Anderson were charged with murder and burglary. Defendant’s trial was severed from that of Lane and Anderson, and did not begin until October 22, 2002. In an amended information, defendant was charged with felony murder (Pen. Code, § 187, subd. (a) ) and second degree burglary (§§ 459, 460, subd. (b)). On December 9, 2002, the jury found defendant guilty on both counts.
Lane and Anderson were tried jointly, and both had been convicted by the time defendant’s trial began. Their convictions were affirmed by Division Five of this court in separate unpublished opinions. (People v. Lane (Dec. 1, 2003, A099502); People v. Anderson (Dec. 19, 2003, A099476).)
All further statutory references are to the Penal Code unless otherwise indicated.
On January 24, 2003, defendant was sentenced to an indeterminate term of 25 years to life on the murder conviction, and the upper term of three years on the burglary conviction, to be served consecutively to the indeterminate term. This timely appeal followed.
DISCUSSION
A. Jury Instructions on Felony Murder
With respect to the murder charge against defendant, the jury was instructed, based on CALJIC No. 8.27, that “If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of robbery or burglary, all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.” In his opening brief on appeal, defendant argued that this instruction was erroneous because neither it nor any of the court’s other instructions informed the jury that the killing had to be in furtherance of a common design or scheme on the part of defendant and the actual killer (i.e., Lane).
During the pendency of the appeal, however, the California Supreme Court decided People v. Cavitt (2004) 33 Cal.4th 187 (Cavitt), which “clarif[ied] a nonkiller’s liability for a killing ‘committed in the perpetration’ of an inherently dangerous felony under Penal Code section 189’s felony-murder rule. [Citation.]” (Id. at p. 193, fn. omitted.) In so doing, the court rejected the argument that liability for felony murder requires that the killing be in furtherance of a common design. Rather, the court held that “[t]he causal relationship [required by the felony-murder rule] is established by proof of a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed or attempted to commit.” (Ibid.) Thus, although the felony-murder rule does not make a nonkiller liable for “homicidal acts that are completely unrelated to the felony for which the parties have combined” (id. at p. 201), neither does “the felony-murder rule . . . require proof that the homicidal act furthered or facilitated the felony[; it requires] only that a logical nexus exist between the two.” (Id. at p. 203.) The court therefore rejected the contention that the jury instructions on felony murder given in Cavitt were “deficient merely because the ‘in furtherance’ phrasing was omitted.” (Ibid.)
In keeping with this analysis, the court held that CALJIC No. 8.27, the source of the felony-murder instruction given in Cavitt as well as in the present case, “adequately apprise[s] the jury of the need for a logical nexus between the felonies and the homicide in this case. To convict, the jury necessarily found that ‘the killing occurred during the commission or attempted commission of robbery or burglary’ by ‘one of several persons engaged in the commission’ of those crimes. The first of these described a temporal connection between the crimes; the second described the logical nexus.” (Cavitt, supra, 33 Cal.4th at p. 203, italics omitted.)
After the issuance of the Supreme Court’s opinion in Cavitt, we requested supplemental briefs regarding its impact on the present case. In his supplemental briefs, defendant argues that, even under Cavitt, his felony-murder conviction was based on insufficient jury instructions. Specifically, he contends that the jury could have found that Lane’s admitted racial animus toward James broke the causal link between the parties’ shared plan to steal James’s money and Lane’s murder of James, and that the jury instructions did not adequately inform the jury that such a causal link was necessary. (See Cavitt, supra, 33 Cal.4th at pp. 210-212 (conc. opn. of Werdegar, J.) [concurring in result on basis of harmless error, but suggesting that felony-murder instructions be clarified “to clearly explain that murder complicity under the felony-murder rule requires not only a temporal relationship between commission of the felony and the killer’s fatal act, but also a logical or causal one”]; id. at p. 213 (conc. opn. of Chin, J. [agreeing that existing instruction is adequate, but suggesting that courts should more clearly inform the jury of the need for a logical connection between the killing and the underlying felony].)
In Cavitt, however, the Supreme Court rejected a very similar contention that the causal link needed for felony murder was broken by the animus harbored toward the victim by the person whom the defendants claimed was the actual killer. Concededly, there is a factual difference between Cavitt and this case, in that here it is undisputed that defendant was not the actual killer. This difference has no bearing, however, on the degree of causal connection between the killing and the predicate felony.
As defendant’s supplemental reply brief acknowledges, even if we were to hold that the felony-murder instructions given in this case were ambiguous, and might have been interpreted by the jury so as to be legally erroneous, we would still be obligated to inquire “whether there is a reasonable likelihood that the jury . . . applied the challenged instruction[s] in a way” that violated defendant’s constitutional rights. (Boyde v. California (1990) 494 U.S. 370, 380.) On the record in this case, we find no such likelihood.
There was strong evidence of a causal connection, “beyond mere coincidence of time and place” (Cavitt, supra, 33 Cal.4th at p. 213 (conc. opn. of Chin, J.)), between the robbery or burglary that defendant helped to plan, and the killing of James— who was the target of that felony— during the course of that crime. Among other facts supporting this connection, perhaps the most telling is that defendant was present when Lane borrowed Ladue’s knife to take with him to the motel, and raised no objection to his doing so. The overall record simply does not permit us to discern a reasonable likelihood that the jury found James was killed solely because of Lane’s racial animus, rather than because of any causal connection with the robbery or burglary, but nonetheless was misled by the instructions into finding defendant guilty of felony murder.
There is some ambiguity in the record as to whether the plan in which defendant participated was that Lane and Anderson would rob James, or that they would gain entry to his motel room through the offer (real or feigned) of Anderson’s services, and then steal his money without the use of force or fear. Even the latter plan contemplated acts constituting burglary, however (see People v. Nguyen (1995) 40 Cal.App.4th 28, 30, 35 [entry into homes with owners’ consent, with intent to steal property by giving worthless check in exchange for it, constituted burglary]), and thus constituted a factually sufficient basis for the jury’s verdict of felony murder if the requisite causal connection was shown. Defendant does not argue otherwise.
B. Admission of Evidence of Defendant’s Use of Racial Slurs
As already noted, Russell testified that after James was murdered, defendant used a highly inflammatory racial slur to refer to James. Defendant’s trial counsel objected to the admission of this evidence as more prejudicial than probative under Evidence Code section 352. The trial judge was unwilling to instruct the witness to use another term in relating what defendant had said to him. The prosecutor argued, in effect, that defendant’s overall admission to Russell was relevant to show defendant’s guilt, and that his identification of the victim by race bolstered this by demonstrating that defendant was aware of the victim’s identity. The trial judge agreed that because the statement was made in the context of a larger conversation in which defendant admitted to Russell that he had helped set up the robbery, it was relevant to the felony murder charge. He also reasoned that in the overall context of the case, defendant’s isolated statement was unlikely to cause the jurors to have such a strong emotional reaction that they would not be able to decide the case fairly. Accordingly, he rejected defendant’s section 352 argument.
All references to statutes in part (B) of the Discussion section of our opinion are to the Evidence Code.
Defendant now argues that this ruling was in error. He acknowledges that the applicable standard of review is abuse of discretion. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 587, overruled on other grounds, Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Quartermain (1997) 16 Cal.4th 600, 628 (Quartermain).) He urges, however, that in this case the challenged evidence was so inflammatory, and so nearly irrelevant, that this standard was met, and that the error was so prejudicial as to require reversal.
Defendant relies primarily on People v. Harris (1998) 60 Cal.App.4th 727 (Harris). In that case, the defendant was accused of nonviolent sexual offenses involving licking and fondling an incapacitated woman and a former consensual sexual partner. Under section 1108, which allows evidence of prior sex offenses in prosecutions for sex crimes, the trial court admitted evidence of a violent sexual offense committed by the defendant 23 years earlier. The Court of Appeal reversed, holding that the evidence should have been excluded under section 352 because its extremely inflammatory nature outweighed its marginal relevance. (Id. at pp. 737-742.)
In Harris, the court discussed five factors to be considered in weighing probative value against prejudicial effect under section 352, and found that all but one of them weighed heavily against admission. The challenged evidence was “inflammatory in the extreme” (Harris, supra, 60 Cal.App.4th at p. 738); was likely to confuse the jury (id. at pp. 738-739); was very remote in time (23 years earlier) (id. at p. 739); and lacked any significant probative value on a disputed issue (id. at pp. 739-741). The only factor favoring admission was that the presentation of the evidence did not occupy much time. (Id. at pp. 739, 741.)
We find Harris distinguishable. In the present case, the challenged evidence, though certainly unfavorable, was nowhere near as inflammatory as the graphic testimony of the defendant’s prior victim that was involved in Harris. It was not likely to confuse the jury, was closely connected in both time and substance to the crimes of which defendant was accused, and required even less time to present than the evidence at issue in Harris. Admittedly, its probative value was fairly negligible, even as part of the overall context of defendant’s admissions to Russell, because the latter were essentially cumulative of Lane’s extensive eyewitness testimony, as well as defendant’s own statements to the police and the testimony of the other witnesses. Nonetheless, we are not persuaded that the section 352 calculus employed by Harris yields the same result in the present case.
More to the point is Quartermain, supra, 16 Cal.4th 600, on which respondent relies. In that case, the Supreme Court rejected a capital defendant’s argument that the trial court erred in not excluding evidence of his use of racial epithets to refer to the murder victim during his interviews with police. (Id. at pp. 627-629.) The court reasoned that “the racial epithets were not so inflammatory that their probative value was substantially outweighed by their potential for undue prejudice,” and that “[w]hile offensive, the use of such language by a defendant is regrettably not so unusual as to inevitably bias the jury against the defendant,” especially where “the racial epithets were only a small portion of the evidence,” and “the prosecutor did not argue that [the] defendant should be convicted because he was a racist.” (Id. at p. 628.)
There is one significant difference between this case and Quartermain. Here, there is no evidence that defendant knew that James was Black until after his murder. On the contrary, the record indicates that prior to Lane and Anderson’s entry into James’s motel room, none of them was aware of his race. Thus, even if defendant’s use of racial epithets to refer to James after his death indicated that defendant harbored racial animosity in general, there was no evidence indicating that his prejudices played, or even could have played, a role in his complicity for James’s murder. Accordingly, the probative value of the evidence here was far more tenuous than it was in Quartermain. Nonetheless, when we view the present case in light of the Quartermain court’s overall analysis of the section 352 issue, we reach the same result here.
Moreover, even if we were to find an abuse of discretion in the admission of the evidence, we still would not find that error to be a basis for reversing defendant’s convictions. As the Supreme Court put it in People v. Coddington, supra, even if a trial court is held to have abused its discretion in admitting evidence, “reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. [Citations.]” (People v. Coddington, supra, 23 Cal.4th at pp. 587-588.) Given the strength of the overall case against defendant here, we are not persuaded that the admission of tangential evidence of his use of a racial epithet on one occasion was “so prejudicial that it denied [defendant] a fair trial in violation of his right to due process.” (Quartermain, supra, 16 Cal.4th at p. 629.)
C. Trial Counsel’s Failure to Object to Admission of Defendant’s Interview
As already noted, defendant was interviewed at the police station about a week after the murder, and the police did not give defendant any Miranda warnings before or during the questioning. Defendant’s trial counsel did not object to the playing of a tape recording of the interview for the jury. Before us, defendant argues that the admission of defendant’s interview was prejudicial error, and that defendant’s trial counsel therefore rendered ineffective assistance in failing to object.
“To secure reversal of a conviction for ineffective assistance of counsel, a defendant must establish that counsel’s performance fell below an objective standard of reasonableness and that, to a reasonable probability, defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citation.] If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.] [Wh]ere the record . . . hints at the existence of some tactical reason for counsel’s decision . . . [, or a]t least, the record fails to eliminate that possibility[, the] defendant’s claim must fail for purposes of [direct] appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) Thus, as defendant acknowledges, we cannot reverse his conviction on the basis of ineffective assistance of counsel unless the record precludes the possibility that there was a reasonable, informed tactical basis for his trial counsel’s failure to object to the admission of his interview. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Wilson (1992) 3 Cal.4th 926, 936.)
Respondent suggests one possible basis in the record indicating that trial counsel’s failure to object was a reasonable tactical choice. As respondent points out, the record is clear that defendant went to the police station voluntarily, and was not arrested or handcuffed prior to his interview. Thus, respondent argues, trial counsel may have concluded that any objection would have lacked merit, because defendant’s interview did not qualify as a custodial interrogation triggering the need for Miranda warnings. We find merit in this suggestion.
We note, in addition, that our review of the record reveals another potential explanation. Defendant’s trial counsel made extensive references to the interview both in his opening statement and in his closing argument. Essentially, he used the statement to enable him to explain defendant’s side of the story to the jury without requiring defendant to waive his right against self-incrimination and subject himself to cross-examination. Thus, the record here reveals not one but two possible tactical reasons for counsel’s decision not to object to the admission of defendant’s interview. Accordingly, we must reject defendant’s ineffective assistance of counsel claim.
D. Blakely-Cunningham Sentencing
For his murder conviction, defendant received an indeterminate sentence of 25 years to life, with the possibility of parole. For his burglary conviction, defendant was sentenced to the three-year upper term. The trial judge ordered the determinate and indeterminate sentences to be served consecutively, starting with the determinate term.
At the sentencing hearing, the trial judge specifically singled out three aggravating factors that he was relying upon “in particular” in imposing the upper term for the burglary conviction: (1) that defendant’s prior convictions as an adult were “numerous and quite serious”; (2) that defendant was on a grant of felony probation when the current offense was committed; and (3) that defendant’s prior performance on probation was “unsatisfactory.” The judge indicated, however, that he was also relying on all of the aggravating factors identified in the probation report, which included the following additional factors: (4) that the crime involved a high degree of callousness in that defendant returned to the location where the victim was murdered; (5) that defendant induced others, including Harrison, to return to the murder scene and commit burglary; (6) that the crime was carried out in a manner that revealed planning; and, (7) that defendant had engaged in violent conduct that revealed him to be a serious danger to society.
At the outset, we reject the Attorney General’s claim that any Blakely error is waived because defendant failed to object in the trial court. Because of the constitutional implications of the error at issue, we question whether the waiver doctrine applies at all. (See In re Sheena K. (2007) 40 Cal.4th 875, 887 & fn. 7 [pure issues of constitutional law not forfeited by failure to object]; People v. Vera (1997) 15 Cal.4th 269, 276-277 [claims asserting deprivation of certain fundamental, constitutional rights not forfeited by failure to object].) Furthermore, there is a general exception to the rule where an objection would have been futile. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 and authority discussed.) We have no doubt that, at the time of the sentencing hearing in this case, an objection that the jury rather than the trial court must find aggravating facts would have been futile (see § 1170, subd. (b); Cal. Rules of Court, rules 4.409, 4.420, 4.421) because Blakely was not decided until after defendant was sentenced. We thus turn to the merits of the Blakely argument.
Defendant was sentenced on January 24, 2003; Blakely was decided on June 24, 2004.
Defendant claims that the trial court’s reliance upon the cited aggravating factors all involved subjective determinations which were required to be made by the jury, and were therefore improper under Blakely. Defendant maintains the determinations that his prior convictions were “numerous and quite serious,” that his performance on probation was “unsatisfactory,” and that he was on probation at the time the instant offenses were committed, are subjective ones which must be determined by a jury. The Attorney General maintains that all three factors on which the trial court relied were based on the fact of defendant’s prior convictions, and thus involved features of “recidivism” which do not implicate Blakely.
The Attorney General makes no reference to the four additional factors mentioned by the trial court. We treat this silence as an implicit concession, with which we agree, that these factors cannot be used here because they involve subjects that must be decided by a jury.
In Cunningham, the United States Supreme Court summarized California’s determinate sentencing law (DSL), and how it fit within the right-to-jury decisions that began with Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and culminated with Blakely: “Under California’s DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. . . . [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.] Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the DSL violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) “[O]ur decisions from Apprendi . . . point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 871.)
The recent decisions in Black II and Sandoval have largely mooted the parties’ contentions. Following those decisions, our analysis need not be extended.
As Black II summarized: “[U]nder the line of high court decisions beginning with Apprendi . . . and culminating in Cunningham, . . . the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 863]). . . . For this reason, we agree with the Attorney General’s contention that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence . . . does not violate the defendant’s right to jury trial,” “regardless of whether the facts underlying those circumstances have been found to be true by a jury.” “Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Black II, supra, 41 Cal.4th at pp. 812-813.)
In Sandoval, the court held: “The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. ([Blakely,] at p. 301; Apprendi, supra, 530 U.S. at p. 490 . . . .)” (Sandoval, supra, 41 Cal.4th at pp. 836-837.)
The second of these exceptions is present here. The record reflects that defendant has at least a dozen felony and misdemeanor convictions. Under Black II, any one of those felony convictions made defendant eligible for imposition of an aggravated term. Any additional circumstances in aggravation found by the trial court are without constitutional significance. (Black II, supra, 41 Cal.4th at pp. 812-813.) Moreover, the large number of defendant’s prior convictions establishes another of the factors in aggravation cited by the trial court, namely, that defendant’s priors were “numerous.” (Id. at pp. 815-816 [defendant with three misdemeanor and two felony convictions].) Accordingly, there was no error in sentencing defendant to an aggravated term for the burglary.
There was also no error in ordering the murder term to be served consecutive to the burglary term. The court in Black II reiterated its holding in Black I that imposition of consecutive sentences is not governed by Apprendi, Blakely, or Cunningham. (Black II, supra, 41 Cal.4th at pp. 817-818.) Those holdings are binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
Our prior decision in Gorman II is hereby vacated. The judgment of conviction is affirmed in all other respects.
We concur: Kline, P. J., Haerle, J.
Ladue was, generally speaking, a problematic witness. She suffered from a number of mental disorders, for which she was taking numerous medications at the time she testified against defendant. She acknowledged that her recollection of the relevant events was hazy, and that she was “having problems keeping things straight” in her testimony. For example, although she testified at defendant’s trial that she gave the knife to Lane, she admitted that when she testified at Lane and Anderson’s trial, she had not remembered whether she gave it to Lane or Anderson. Ladue was originally charged as an accessory after the fact in connection with James’s murder, but agreed to testify against Lane, Anderson, and defendant in exchange for immunity.