Opinion
E039958
9-17-2007
THE PEOPLE, Plaintiff and Respondent, v. EDWARD JOSEPH GUTIERREZ, Defendant and Appellant.
Beatrice C. Tillman, 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, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Following a jury trial, defendant Edward Joseph Gutierrez was convicted of possession of marijuana for sale. (Health & Saf. Code, § 11359.) The jury acquitted him of a charge of transportation of marijuana (Health & Saf. Code, § 11360) and found a gang enhancement to be not true. In a bifurcated proceeding, the trial court found true three prior prison term allegations and one strike allegation. (Penal Code, §§ 667.5, subd. (b), 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) Defendant was sentenced to a total term of nine years in state prison. Defendant appeals, contending that (1) his rights to due process and a fair trial were violated when the prosecutions expert testified that in his opinion defendant owned the marijuana found in the garage; (2) the trial court erred in allowing the impeachment of a witness with his prior felony conviction which had been dismissed; (3) there were several incidents of prosecutorial misconduct; and (4) he was deprived of his federal and state constitutional rights to a jury trial and due process when the trial court imposed the upper term. We reject these contentions and affirm.
All further statutory references are to the Penal Code unless otherwise specified.
I. PROCEDURAL BACKGROUND AND FACTS
On January 14, 2005, officers conducted a probation search of a residence in Hesperia where Danny Gurule lived.
In the garage, defendant was sitting at a makeshift table with his hands on the top. On the table was a brick of marijuana, two weighing scales, and seven Ziploc baggies with what appeared to be marijuana in them. The officers suspected the weight of the marijuana to be approximately 20 pounds. Inside one of the baggies was a credit card with defendants name on it. Expert testimony established that stiff objects such as credit cards are used by drug dealers to break off marijuana from bricks and then to scrape up loose pieces for packaging.
Defendants brother, Israel, was in the garage but off to the side.
There was a small fireproof safe on the ground next to the makeshift table. There was only one key to the safe, and it was found on defendant. Inside the open safe were two small metal marijuana pipes, three glass pipes, small Ziploc baggies, and a black plastic scale.
A disposable camera was also found in the garage. When the film in the camera was developed, there were photographs of defendant holding bundles of prepacked marijuana; he was wearing the same shirt that he was wearing when he was arrested. The background and the makeshift table shown in the photos were identical to the appearance of the garage on the night of defendants arrest.
Expert testimony established that given the amounts of marijuana, the packaging materials, scales and baggies, it was possessed for sale.
While the police were in the living room area of the house carrying out their probation search, a man later identified as Francisco Estrada entered the house without knocking. Estrada was detained, and a deputy searched the car and found three more bricks of marijuana weighing approximately 10-15 pounds in a blue "duffel bag type of container" in the trunk.
Defendants brother, Israel, testified on behalf of defendant. Israel claimed that all of the marijuana in the car and in the garage belonged to Estrada. According to Israels testimony, defendant had arrived at the home to pick up his children only minutes before the police arrived to conduct the search. Israel further testified that he was misidentified as defendant and vice-versa. Defendant had tattoos on his eyebrows and neck; his brother did not.
II. EXPERTS OPINION THAT DEFENDANT OWNED THE MARIJUANA
On direct examination, the prosecutions expert witness testified that in his opinion, the marijuana was possessed for sale. The expert did not mention ownership. However, on cross-examination, questioning by defense counsel brought out the testimony that the expert believed the marijuana was owned by defendant. The questioning was as follows:
"Q. . . [Y]ou didnt testify to any indication as to who owned the marijuana; right?
"A No.
"Q Because you dont know who owned the marijuana?
"THE COURT: You said no, and thats one of those questions that was asked a certain way. I want to make the record clear. You said no, you meant yes, right, I didnt testify to the
"[DEFENSE COUNSEL]: Youre right. Double negative youre
"THE WITNESS: Correct.
"[DEFENSE COUNSEL]: Q Youre saying — did you testify as to who owned the marijuana?
"A Yes. I believe I testified as to who owned the marijuana at the time and it was the defendants in court. [¶] . . . [¶]
"[DEFENSE COUNSEL]: Q So its your belief they owned the marijuana.
"A Yes."
On appeal, defendant contends that his rights to due process and a fair trial were violated when the prosecutions expert opined that defendant owned the marijuana found in the garage. We reject this contention for the following reasons.
To begin with, as respondent points out, the experts opinion came out as a result of defense counsels questioning. Thus, while we agree that an expert may not bring before the jury incompetent hearsay evidence under the guise of stating reasons for his or her opinion, (People v. Price (1991) 1 Cal.4th 324, 416) in this case defense counsel elicited such evidence. Clearly, the "error" was plainly invited. (People v. Chaney (2005) 131 Cal.App.4th 253, 256, fn. 5.)
Defendant disagrees, arguing the "invited error doctrine is not applicable to what occurred here because defense counsel did not invite the court to make an error, nor did the court make any error." We disagree. The doctrine of invited error, which prevents "an accused from gaining a reversal on appeal because of an error made by the trial court at his behest" (People v. Wickersham (1982) 32 Cal.3d 307, 330, overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200) requires more than mere assent by defense counsel; defense counsel must have "`intentionally caused the trial court to err" before defendant can be held to have invited the error (People v. Marshall (1990) 50 Cal.3d 907, 931). Here, there was more than mere assent. Defense counsel questioned the expert on his opinion of ownership and the expert responded. Defense counsel did not immediately object to the experts testimony and thus has waived this issue on appeal. (People v. Rogers (1978) 21 Cal.3d 542, 548 ["questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal"]; see Evid. Code, § 353.)
Notwithstanding the above, even if it were error to admit expert testimony on this point, any such error was harmless. The evidence against defendant was overwhelming. In fact, ownership of the marijuana was self-evident given the location, the presence of defendant, the use of his credit card, and the photographs. Clearly, the jury would have reached the same conclusion even in the absence of expert testimony. Thus, there is simply no reasonable probability of a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 837.)
III. IMPEACHMENT OF WITNESS WITH DISMISSED PRIOR CONVICTION
On direct examination, defendants brother Israel admitted that he had "violations and [a] couple [of] possessions" between 1995 and 1998. During cross-examination, the prosecutor asked him if he was a convicted felon. Israel denied such classification, explaining that he had completed a drug program and thought his conviction had been reduced to a misdemeanor. Defense counsel objected and moved to strike the question and answer. The trial court reviewed the documentation regarding Israels prior and ruled that he could be impeached with the prior conviction. Thus, defense counsels motion to strike was denied. The prosecutor again questioned Israel about his prior conviction, and Israel again denied that he was convicted because of his completion of the drug court program.
On appeal, defendant contends the trial court erred in allowing the prosecutor to impeach his brother with a prior felony conviction that had been expunged and dismissed.
For the purpose of attacking the credibility of a witness, "it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless: [¶] . . . [¶] (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code [s]ection 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense." (Evid. Code, § 788.)
Section 1203.4 provides that a successful probationer "shall thereafter be released from all penalties and disabilities resulting from the offense . . . ." (§ 1203.4, subd. (a).) "`A grant of relief under section 1203.4 is intended to reward an individual who successfully completes probation by mitigating some of the consequences of his conviction and, with a few exceptions, to restore him to his former status in society to the extent the Legislature has power to do so [citations]. [Citation.] [¶] The California Legislature has seen fit to render convictions expunged pursuant to section 1203.4 as incompetent impeachment evidence for ordinary witnesses in civil or criminal trials. [Citations.]" (People v. Field (1995) 31 Cal.App.4th 1778, 1787.)
Here, the prosecution sought to impeach Israel with a 1998 prior felony conviction for drugs. The trial court allowed such impeachment, and Israel testified that he had been convicted of such felony; however, he had completed the courts drug program and the judge had said that he was going to wipe out the conviction. Clearly, the trial court erred in allowing such impeachment. Respondent agrees. Nonetheless, respondent argues that the error was harmless. We agree with respondent and find the error to be harmless.
By separate motion dated March 5, 2007, defendant requests that this court take judicial notice of the "San Bernardino County Superior Court records in criminal case no. FSB19092." Because respondent has conceded that the trial court erred in allowing the use of Israels prior criminal history for impeachment purposes, and we have found error, defendants request for judicial notice is moot.
Initially, we note that Israel testified on direct examination that he had been twice convicted on drug charges in the mid- to late 1990s. Beyond his prior convictions, Israels testimony shows that his credibility was called into question. He testified that he spent a lot of time with defendant, his brother; however, when asked about his brothers tattoos, Israel did not know what tattoos his brother had on his body. He further denied knowing that defendants gang nickname was Capone. He also claimed that he has been misidentified as defendant, and vice versa. However, defendant had tattoos on his eyebrows and neck while Israel did not. Israel admitted to being raised in Colton, yet he had only "heard of" the North Side Colton gang. Although Israel knew Gurule for more than 10 years, he claimed that he never noticed Gurules gang tattoos on his body. He described the five-pound brick of marijuana as "little." And finally, Israel claimed that the photograph of defendant holding the marijuana looked like he was holding lettuce.
Given Israels admission of his prior conviction on direct examination, the above inconsistencies in Israels testimony that damaged his credibility, and the fact that the prosecution did not mention Israels prior convictions during closing argument, the prosecutions use of Israels expunged felony was of no consequence. (People v. Watson, supra, 46 Cal.2d at p. 837.)
IV. PROSECUTORIAL MISCONDUCT
Defendant contends the prosecutor committed misconduct (1) during the direct examination of Officer Scarano, (2) during the cross-examination of Israel Gutierrez, and (3) during closing argument.
It is well established that "[t]o constitute a violation under the federal Constitution, prosecutorial misconduct must `so infect[] the trial with unfairness as to make the resulting conviction a denial of due process. [Citations.] `But 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 court or the jury. [Citation.] To be cognizable on appeal, a defendant `"must make a timely objection at trial and request an admonition; otherwise, the [claim of prosecutorial misconduct] is reviewable only if an admonition would not have cured the harm caused by the misconduct." [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 122.)
A. Examination of Officer Scarano.
During the examination of Officer Scarano, the prosecutor asked several questions regarding how many members of the High Desert Gang Task Force, of which Officer Scarano was a member, went to the home of Danny Gurule on the night of the search and why they were conducting the search. Over defense objection, Officer Scarano testified, "The reason why we took everybody there was because the officers had advised me that Danny Gurule is a gang member, and he has several family members that have parole and — [¶] . . . [¶] And for officer safety purposes drew the family criminal activity and history." The trial court interrupted the questioning and warned the prosecutor that it was not relevant as to why so many officers were involved in the probation search. The court denied defense counsels motion for mistrial; however, it struck Officer Scaranos entire testimony and gave a curative instruction to the jury.
Despite the trial courts action and warning, the prosecutor again asked, "Was there a reason why you brought more than just yourself in going to this location?" Defense counsel again objected and moved for a mistrial. The trial court denied the motion. The prosecutor again asked how many officers are sent in the normal compliance check case. Defense counsel requested a sidebar conference and requested the trial court to admonish the prosecutor again. The trial court replied: "I think that you have a right to . . . get from this person . . . the fact he was going there. I think that the fact he was a member of the Gang Task Force, thats relevant. I think that [the] fact he had information Danny Gurule was a member of a gang, I think that thats relevant. [¶] . . . [¶] Again, the number of people that went there, thats 352."
According to defendant, the "prosecutors improper questioning of Scarano was clearly an attempt to disparage [defendant] and his family in front of the jury by strongly implying the situation was highly dangerous because [defendant] and his family were dangerous criminals associated with gangs." We disagree. As respondent points out, there was an allegation that the crimes had been done to benefit a criminal street gang. (§ 186.22, subd. (b)(1).) There was other testimony about gang, gang tattoos and gang signs throughout the case. The prosecutors questioning of Scarano regarding the number of officers present during the search did not inject the topic of gangs into a non-gang case. Moreover, the jury was instructed that questions of the attorneys were not evidence, and since the specific question was never answered, there is no showing of harm.
B. Cross-examination of Israel Gutierrez.
As previously noted, the prosecution attempted to impeach Israel Gutierrez with his prior criminal record during cross-examination. (See discussion, ante.) Defendant argues that such attempted impeachment amounts to prosecutorial misconduct. We disagree.
As we have noted, the trial court erroneously allowed the impeachment of Israel. However, having found error, we do not find it to be prejudicial. (See discussion, ante.) The same applies here. Even if we were to assume the prosecution committed misconduct in attempting to impeach Israel with his prior criminal record, we cannot find the misconduct to be prejudicial. Generally, "[p]rosecutorial misconduct is cause for reversal only when it is `reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant. [Citation.]" (People v. Milner (1988) 45 Cal.3d 227, 245; see also People v. Watson, supra, 46 Cal.2d at p. 836.) Even if the prosecutor had not used Israels prior criminal record to impeach, given the other evidence that impeached his credibility, there is no reasonable probability that defendant would have obtained a more favorable result absent the alleged error.
C. Closing Argument.
During closing argument, the prosecution urged the jury to take this case seriously because "[g]angs are coming up to the High Desert. Theyre here. [¶] Okay. We have to open our eyes . . . ." Sustaining defense counsels objection, the trial court agreed that the comment inappropriately appealed to the passion and prejudice of the jury. Defense counsel moved to strike the comment, but the trial court denied the request. Defense counsel then reserved the right to make a motion for mistrial. On appeal, defendant contends, "it is evident that the highly charged statement regarding the pervasiveness of gangs in the High Desert was an open invitation for the jury to decide [defendants] guilt or innocence based on personal fears regarding criminal gangs rather than focusing on the specific gang evidence presented at trial."
Again, for purposes of argument, we will assume that the prosecutors comment amounted to misconduct. Having made such assumption, we are unable to find the misconduct to be prejudicial. As previously noted, this case involved a gang allegation. As respondent aptly points out, "[i]f the jury had been inflamed by the actions of the prosecutor concerning gangs, the jury would have marched out and promptly convicted [defendant] of all of the charges, and especially the gang enhancement. But, they did not do that. They acquitted [defendant] of the gang enhancement and acquitted [him] of the transportation charge." Given the jurys verdict, we find there is no reasonable probability that defendant would have obtained a more favorable result absent the alleged error.
V. IMPOSITION OF AGGRAVATED SENTENCE
After the jury found defendant guilty of possession of marijuana for sale, the trial court sentenced him to the upper term of three years. Prior to imposing such sentence, the trial court stated: "If I impose the aggravated term, those things are specifically that the crime involves a large quantity of contraband. We know that that is true. The fact that [defendant] is someone who has a tremendous history of convictions is not something that — I mean, its just not debatable. While its debatable perhaps, but you are not denying — you are not denying his criminal history? [¶] [DEFENSE COUNSEL]: Were not. [¶] THE COURT: And the fact that if nothing else that we find in aggravation is that he has violated parole, and he was on parole at the time of the commission of this offense. Those are factors in aggravation that exist independently of any conclusion that or characterization, if you will, that were put in the report by the probation officer, and those are things that cause me to believe that the probation officers got one thing right and thats the appropriate sentence." Later on, when the trial court imposed the sentence, it stated, "I could find no circumstances in mitigation that were appropriate to impose. I think that all of the factors in aggravation as listed on page five are accurate, and I think that [is] of great significance irrespective of how you were performing at that particular time on parole, when someone is unable to even get through their period of parole without committing a new offense, its a matter of — that is serious. Your record is very serious . . . ."
This term was subsequently doubled to six years because of defendants prior strike.
Relying on Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), defendant contends the trial court violated his federal constitutional rights to the jurys beyond-a-reasonable-doubt determination of facts used to impose the upper base term. Defendant therefore argues that this court "should reverse imposition of the upper term and remand the case for the trial courts reconsideration of whether the middle or lower term should be imposed." We reject defendants claim for the following reasons.
We note that although the trial court discussed the challenged factors cited by defendant (i.e., the crime involved a large quantity of contraband) and listed by the probation officer, it also relied upon defendants extensive criminal record in support of the upper base term sentence. According to the probation report, "defendant has been sentenced to state prison several times and has violated his parole on several occasions. [He] obviously has a hard time functioning in everyday society when not in custody."
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court overruled People v. Black (2005) 35 Cal.4th 1238 (Black I), and held that the middle term in Californias determinate sentencing law was the relevant statutory maximum for the purpose of applying Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). (Cunningham, supra, 127 S.Ct. at p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), and affirmed in Apprendi: "[T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]" (Cunningham, supra, at p. 860, italics added; see also Apprendi, supra, at pp. 488, 490.) The court in Cunningham explained Californias determinate sentencing law violates Apprendis "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, at p. 868.)
Defendants assertion that the sentence violates Cunningham is without merit. The rule of Cunningham does not apply to the use of prior convictions to increase the penalty for a crime. (Cunningham, supra, 127 S.Ct. at p. 868; see also Apprendi, supra, 530 U.S. at pp. 488, 490; Blakely, supra, 542 U.S. at p. 301.) The Almendarez-Torres/Apprendi exception is sufficiently broad to encompass all matters ascertainable from the face of the prior judgment of conviction. (People v. McGee (2006) 38 Cal.4th 682, 707-709; People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) As the record of sentencing would show whether probation was granted and whether defendant was on probation or parole when the current offense was committed or whether defendants performance on probation or parole was unsatisfactory, we conclude that the exception extends to these facts as well. Defendants sentencing report shows that he has an extensive criminal history as well as a history of repeatedly violating probation and/or parole. It also shows that he had served numerous prior prison terms. Hence, imposition of the upper term based on defendants criminal recidivism was proper. (People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 Cal. LEXIS 7604, p. *3] (Black II) [presence of a single proper aggravating factor makes a defendant statutorily "eligible" for the upper term].)
It is settled that "[o]nly a single aggravating factor is required to impose the upper term." (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Earley (2004) 122 Cal.App.4th 542, 550.) Here, the trial court was free to rely on defendants prior convictions, prior prison terms, prior performance on probation and parole, and recidivism to impose the upper term, as permitted by Cunningham and Blakely. Even if we were to assume error under Cunningham based on the trial courts reference to other aggravating factors, the error was harmless beyond a reasonable doubt (see Chapman v. California (1967) 386 U.S. 18, 24). (Washington v. Recuenco (2006) ___U.S.___, [126 S.Ct. 2546, 2553, 165 L.Ed.2d 466, 477] ["[f]ailure to submit a sentencing factor to the jury . . . is not structural error" and is subject to harmless error rule]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) As respondent aptly notes, "four of the five reasons for the upper term were recidivist factors." Thus, the trial court would have imposed the same term with or without its reference to the challenged factors.
We therefore reject defendants contention that Cunningham, supra, 127 S.Ct. 856, requires that his sentence be reversed or remanded.
VI. RESTITUTION FINE
Defendants final contention is tied to his claim for resentencing in accordance with Cunningham, supra, 127 S.Ct. 856. Defendant argues that his restitution fine should be reduced in accordance with the formula stated in section 1202.4, subdivision (b)(2) [restitution fine is computed by multiplying $200 by the number of years of imprisonment]. Since we have found no need to remand the case, this claim is moot.
VII. DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J.
GAUT, J.