Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F06855
DAVIS, Acting P.J.
Following a jury trial, defendant Jerry Hamilton was found guilty of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)) and possession of an analog precursor with intent to manufacture methamphetamine. (Health & Saf. Code, former § 11383, subd. (c)(1).) In bifurcated proceedings, the court found true multiple enhancements, including seven prior drug convictions under Health and Safety Code section 11370.2, subdivision (b), one prior drug conviction under Health and Safety Code section 11370.2, subdivision (c), and three prior prison terms. (Pen. Code, § 667.5, subd. (b).)
Hereafter, undesignated section references are to the Penal Code.
Sentenced to an aggregate term of 34 years in state prison, defendant appeals his convictions. Defendant contends he was denied due process of law by the trial court’s failure to grant a witness immunity, and the trial court erred in using prior convictions to impose an upper term and to enhance the sentence on the charge of manufacturing methamphetamine. In supplemental briefing, defendant contends that, under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the trial court erred in sentencing him to the upper term on the manufacturing methamphetamine count. We shall affirm.
Initially, defendant also contended that the sentences imposed on the prior prison term enhancements had to be set aside, as the enhancements were never found true. In his reply brief he correctly concedes he misread the record. Presumably he has withdrawn this claim.
FACTS AND PROCEDURAL HISTORY
In 2004, Elizabeth Karr lived across the street from Ted Bartholomew on Caber Way. When Ted passed away, his sister, Cheryl Bartholomew, inherited the house. Cheryl Bartholomew was selling the house; her son, John, and his friends were helping fix it up for sale. One of those friends was defendant Hamilton.
John Bartholomew was a codefendant in this case.
In July and August of 2004, Karr saw various people who appeared to be living at the house, including codefendants Bartholomew and Kim Brainard. Around that same time, defendant Hamilton also started staying at the house, although he generally slept in his car in the driveway.
On August 5, 2004, the Sacramento County Sheriff’s Department received a 911 call, claiming there was a “dope lab” in the kitchen of the Bartholomew home, a stolen car in front of the house and a female screaming for help. The 911 caller stated he was standing across the street from the home at the time of the call, but the 911 dispatcher was aware the phone call came from a pay phone elsewhere.
James Oakley, a “friend” of defendant Hamilton, knew there was a methamphetamine lab at the Caber Way house and was the person who made the 911 call.
Deputy Thomas Lynn responded to the 911 call. Upon arriving at the scene, he saw defendant Hamilton and codefendant Bartholomew in the front yard of the house working on cars and going into the garage. When he approached defendant Hamilton, defendant started walking quickly toward the house. He appeared “[n]ervous, agitated, [and] sweaty.” Defendant Hamilton told the deputy he had been staying at the house for the past few weeks.
Upon learning there was a woman in the house, Deputy Lynn entered the house yelling for “Kimmy” and immediately saw “what appeared to be the making of a methamphetamine lab.” He found codefendant Brainard in a bedroom and took her outside. He then reentered the house and did a protective sweep of the house. While completing the sweep and leaving through the garage, Deputy Lynn saw a small bag in a pouch on the ground. The pouch appeared to contain methamphetamine.
The contents of the pouch were not tested.
Sacramento County Sheriff’s Detective Randy Moya was also called to the scene. Detective Moya described the process of manufacturing methamphetamine. Based on his training and experience, Detective Moya opined there were a number of items found at the Caber Way house which are associated with manufacturing methamphetamine. These included items such as coffee filters with “hard solid amber red powder,” tubing running into a bottle, glassware, including round-bottom flasks and mason jars, ephedrine/pseudoephedrine, a bottle of Red Devil lye, iodine crystals, 2 five-gallon buckets with staining usually associated with iodine and the production of iodine crystals and tincture, 2 one-gallon jugs of iodine tincture (one full, one empty), six empty bottles of hydrogen peroxide and one can of MSM.
Detective Moya also testified ephedrine/pseudoephedrine is the primary precursor used to manufacture methamphetamine.
MSM is used to cut the methamphetamine, similar to “watering down alcohol.”
Detective Moya also found a duffel bag in the garage. Information within the bag indicated it belonged to defendant Hamilton. Also in the garage was more iodine tincture, Red Devil lye, sodium hydroxide, a funnel and a box of rubber gloves. Based on his training and experience, Detective Moya opined that methamphetamine was being processed at the Caber Way house and that the ephedrine was possessed with the intent to manufacture methamphetamine. Based on what he saw at the Caber Way house, Detective Moya also concluded the lab had been there “for a while. [It was] [n]ot your typical one[-]day . . . .” However, he did acknowledge such a lab could have been set up in about an hour.
Criminalist Jason Hooks analyzed the materials found at the Caber Way house. He found a number of substances consistent with, and tied to, particular stages of the methamphetamine production process. Based on his findings, Hooks concluded methamphetamine had been produced and that the ephedrine and iodine were intended to be used for manufacturing methamphetamine.
Robert Long sold defendant Hamilton a car. When defendant Hamilton fell behind in his car payments, he offered Long drugs in lieu of cash. Long heard that the car was in a “driveway with crime scene tape all over it,” so he decided to “repossess” the car from the Caber Way house. Before repossessing the car, he decided to remove anything that did not belong to him. Among defendant Hamilton’s personal effects, Long also found gallon-size plastic containers and clear plastic hosing. Defendant Hamilton also discussed some aspects of methamphetamine manufacturing with Long. On one occasion, he came out of the garage area of a house with a white substance on a napkin and told Long he had to dry a “batch” so it would crystallize and that “he did not like it when he got a bad batch.”
Long described the bottles as “chemical bottles.”
This exchange occurred at James Oakley’s house.
Pursuant to Evidence Code section 1101, Sacramento Police Officer James Beezley testified about a call he responded to in July 1997 involving defendant. Specifically, defendant had been staying in a motel room in which items associated with manufacturing methamphetamine were found. These items included ephedrine, iodine, hydrochloric acid, three to four containers of methamphetamine, funnels, propane torches, glass beakers, coffee filters and hosing.
PROCEDURAL HISTORY
Defendant was charged by information with manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possession of an analog precursor with intent to manufacture methamphetamine (Health & Saf. Code, former § 11383, subd. (c)(1)), and possession of stolen property (§ 496, subd. (a)). The information further alleged a number of enhancements, including seven prior convictions under Health and Safety Code section 11370.2, subdivision (b), one prior drug conviction under Health and Safety Code section 11370.2, subdivision (c) and three prior prison terms. (§ 667.5, subd. (b).)
Following the presentation of the People’s case, the court granted defendant Hamilton’s motion for a directed verdict of acquittal as to count three, the possession of stolen property charge.
On July 6, 2006, the jury found defendant guilty of manufacturing methamphetamine and possessing an analog precursor with intent to manufacture methamphetamine. In bifurcated proceedings, the court found each of the enhancement allegations true.
The court denied probation and sentenced defendant to an aggregate term of 34 years in state prison. This sentence consisted of the upper term of seven years on the manufacturing methamphetamine conviction, three years on each of the eight prior conviction enhancements, and one year on each of the three prior prison term enhancements. An eight-year prison sentence was imposed on defendant’s conviction for possession of an analog precursor, but the sentence was stayed pursuant to section 654. The court stated the reason for the imposition of the upper term was defendant’s “prior convictions as an adult are numerous.”
DISCUSSION
1. The Trial Court did not Abuse its Discretion in Denying Immunity to Witness James Oakley
FACTS AND PROCEDURAL HISTORY ON WITNESS IMMUNITY
Defendant sought to introduce evidence regarding third-party culpability, specifically that James Oakley planted the evidence at the Caber Way house. Oakley’s supposed motive was to get defendant “out of the way,” particularly in relation to an alleged “love triangle” involving Oakley’s girlfriend. At the time of the trial, Oakley had criminal charges pending against him, and there was a potentially active charge that he had manufactured methamphetamine two years prior.
An Evidence Code section 402 hearing was conducted at which, on advice of counsel, Oakley invoked his Fifth Amendment privilege against self-incrimination. The court found Oakley’s invocation of privilege valid because his testimony could show a tie to the Caber Way house and the manufacturing materials found within it. The People refused to give defendant immunity for his testimony.
Defendant then moved the court to grant judicial immunity to Oakley. The court denied the request, finding the proffered testimony was not clearly exculpatory and the testimony might be essential but was fraught with problems of credibility and motive. The court also found the prosecution had not given immunity to some witnesses and then refused it to Oakley. This motion was later renewed in a motion for new trial and denied again. It appears from the record that the motion to present evidence of third-party culpability was withdrawn.
The record does not contain a motion from any of the defendants regarding the presentation of evidence to establish third-party culpability. There is, however, a motion in limine from the People seeking to exclude such evidence. There is no indication of any ruling on the People’s motion in limine; there is only the court’s reference that codefendant Bartholomew had withdrawn his motion regarding third-party culpability.
ANALYSIS
Defendant relies on Government of Virgin Islands v. Smith (3rd Cir. 1980) 615 F.2d 964 (Smith), United States v. Westerdahl (9th Cir. 1991) 945 F.2d 1083 (Westerdahl), and United States v. Lord (9th Cir. 1983) 711 F.2d 887 (Lord) to support his claim that the court has authority to grant immunity to witnesses and should have granted such immunity to James Oakley.
Defendant has not cited any California authority which has, in fact, held that the court has inherent authority to grant immunity to a witness called by the defense. Nor has independent research revealed any.
The California Supreme Court has repeatedly avoided answering this precise question; instead it has proceeded, assuming for the sake of argument, that the court had such authority and then analyzed each particular case based on the tests enunciated in People v. Hunter (1989) 49 Cal.3d 957 (Hunter) and Smith. (See Hunter, supra, 49 Cal.3d at pp. 974-975; People v. Lucas (1995) 12 Cal.4th 415, 460-461; People v. Stewart (2004) 33 Cal.4th 425, 468 (Stewart), and cases cited therein.)
At most, the California Supreme Court has acknowledged “it is possible to hypothesize cases where a judicially conferred use immunity might possibly be necessary to vindicate a criminal defendant’s rights to compulsory process and a fair trial[.]” (Hunter, supra, 49 Cal.3d at p. 974.) However, the California Supreme Court has characterized the proposition that the trial court has inherent authority to grant immunity as “doubtful.” (Lucas, supra, 12 Cal.4th at p. 460.) We need not decide the issue of whether inherent authority exists in the trial court, as defendant has not met either of the tests which might confer such authority.
The first test which might allow a trial court to confer immunity upon a witness is satisfied “when each of the following three elements is met: (1) ‘“the proffered testimony [is] clearly exculpatory; [(2)] the testimony [is] essential; and [(3)] there [is] no strong governmental interest which countervail[s] against a grant of immunity.”’” (Stewart, supra, 33 Cal.4th at p. 469.) In meeting this test, the defendant’s offer of proof must specify the “particulars of the witness’ testimony.” (Smith, supra, 615 F.2d at p. 972.) That is, the “‘defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendant’s case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative, or it is found to relate only to the credibility of the government’s witnesses.’” (Stewart, supra, 33 Cal.4th at p. 469, fn. 23, quoting Smith, supra, 615 F.2d at p. 972.)
The second test that might authorize a court to grant immunity is based on a finding of prosecutorial misconduct. That is, “when ‘the prosecutor intentionally refuse[s] to grant immunity to a key defense witness for the purpose of suppressing essential, noncumulative exculpatory evidence,’ thereby distorting the judicial factfinding process.” (Stewart, supra, 33 Cal.4th at p. 470; Smith, supra, 615 F.2d at p. 968.) A grant of immunity based on prosecutorial misconduct is “not predicated upon a finding that the witness’ testimony is clearly exculpatory or otherwise essential to the defendant’s case.” (Smith, supra, 615 F.2d at p. 969, fn. 7.) Rather, the proffered testimony need only be relevant. (Ibid.; see also Stewart, supra, 33 Cal.4th at p. 470.) “[A]n unrebutted prima facie showing of prosecutorial misconduct that could have prevented a defense witness from giving relevant testimony justifies remand for an evidentiary hearing.” (Lord, supra, 711 F.2d at p. 891.)
Defendant contends this case has “strong similarities to Smith.” We disagree. In Smith, there was a specific and detailed proffer along with a strong suggestion of prosecutorial misconduct.
In Smith, Ernesto Sanchez made statements to the police that incriminated himself and were exculpatory to three of the four defendants charged in the case. (Smith, supra, 615 F.2d at pp. 966-967.) Prior to trial, Sanchez was in the custody of the U.S. Attorney and the defendants were denied access to him. The government did not explain why it had sequestered him. (Id. at p. 967, fn. 3.) Because he was less than 16 years old at the time the crimes were committed, Sanchez came within the exclusive jurisdiction of the juvenile authorities in the Virgin Island Attorney General’s office. That office had offered Sanchez immunity, conditioned on the U.S. Attorney’s consent. The consent was not granted. (Id. at p. 967.) Finally, when defense counsel sought to utilize Sanchez’s earlier statement to police under an exception to the hearsay rule, the government opposed the introduction of that statement on the ground that it would not be able to cross-examine Sanchez on the statement. (Ibid.)
The Smith court found the prosecution’s inherently weak case could be significantly damaged by Sanchez’s testimony; the refusal to consent to immunization not only prevented Sanchez from testifying at trial, but also formed the predicate for the government’s objection to Sanchez’s prior statement being used; and, the U.S. Attorney offered no justification for refusing to consent to the immunity agreed to by the juvenile authority. (Smith, supra, 615 F.2dat p. 969.) On this record, the court found a suggestion that the “prosecution deliberately intended to keep this highly relevant, and possibly exculpatory, evidence from the jury.” (Ibid.) Thus, the court found either of the two tests might be met in this case. (Id. at p. 974.)
In both Lord and Westerdahl, upon which defendant also relies, there was an unrebutted prima facie showing that the prosecutor had engaged in misconduct which could have prevented a defense witness from testifying.
In Lord,the prosecutor might have told the defense witness the issue of whether he would be prosecuted depended on his testimony. (Lord, supra, 711 F.2d at pp. 889, 891.) This witness might have corroborated defendant’s claim that he was entrapped. (Id. at p. 891.) The court also found that if the prosecutor had told the witness that whether he would be prosecuted depended on his testimony, then the prosecutor would have deliberately caused the witness to invoke his Fifth Amendment privilege and thereby distorted the judicial factfinding process. (Ibid.)
In Westerdahl, two witnesses had been granted immunity and another had gotten a very favorable plea bargain (Westerdahl, supra, 945 F.2d at pp. 1085, 1087), while the defense witness whose expected testimony contradicted the prosecution witnesses was denied immunity (id. at p. 1085). The court found that the government granting “immunity to a witness in order to obtain his testimony, while denying immunity to a defense witness whose testimony would directly contradict that of the government witness” was the type of “fact-finding distortion” which needed to be prevented. (Id. at p. 1087.)
There is nothing in this record that suggests any prosecutorial misconduct. No witness in this case was granted immunity. Nor is there any evidence in the record that the prosecution deliberately caused Oakley to invoke his Fifth Amendment privilege.
Defendant did not establish that Oakley’s testimony was clearly exculpatory and essential. Simply, his offer of proof was insufficient. “[A]n offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.” (People v. Schmies (1996) 44 Cal.App.4th 38, 53.) Here, the offer of proof in its entirety was, “[O]ur offer of proof is that Mr. Oakley planted evidence, set up these defendants and did so out of a personal motive. He had to get these defendants, particularly [defendant Hamilton], out of the way.”
The offer of proof is woefully deficient, particularly when viewed in comparison with those in Smith, Lord and Westerdahl. It did not specify the particulars of what Oakley’s testimony would be if he were to testify or how that testimony might meet the standards expressed in Hunter and Smith. The offer did not set out actual evidence to be produced, but rather made conclusory statements better suited to closing argument than an offer of proof. Because of these failures, defendant’s proffer did not meet the requirements of Smith and Hunter and the trial court did not err in refusing to grant immunity to Oakley. (See In re Williams (1994) 7 Cal.4th 572, 610.)
2. The Trial Court did not Err by using the Prior Convictions to Impose the Upper Term
Defendant next contends the trial court erred in impermissibly using defendant’s prior record of convictions both to impose an upper term sentence and to support the enhancement allegations. We disagree.
Section 1170, subdivision (b), and California Rules of Court, rule 4.420(c), prohibit the use of any fact both to enhance a sentence and to impose the upper term. (People v. Jackson (1987) 196 Cal.App.3d 380, 388, disapproved on another ground in People v. Rodriguez (1990) 51 Cal.3d 437, 444-445, fn. 3.) Thus, in imposing the upper term for manufacturing methamphetamine, the trial court was precluded from using defendant’s prior drug convictions in 2004, 1999 and the five in 1992, for which he received a three-year enhancement on each and defendant’s prior prison terms suffered in 1992, 1995 and 1999, for which he received a one-year enhancement each. However, defendant cannot affirmatively demonstrate that the trial court made a prohibited dual use of facts since defendant had other prior convictions. (People v. Bejarano (1981) 114 Cal.App.3d 693, 706.) Defendant had four prior misdemeanor convictions, a 1992 felony conviction for possession of a controlled substance and possession for sale, and a 1992 felony conviction for vehicle theft. Contrary to defendant’s claim, there was nothing precluding the trial court from considering these prior convictions for purposes of imposing an upper term. As there were other prior convictions to support the trial court’s finding, there was no impermissible dual use of facts. (People v. Forster (1994) 29 Cal.App.4th 1746, 1758.)
3. There was no Error under Cunningham
A sentencing court may rely on the fact of a prior conviction to impose an upper term sentence, even when it has not been submitted to a jury and proven beyond a reasonable doubt or admitted by defendant. (Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]; see Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350]; Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466, 488-490 [147 L.Ed.2d 435].)
Prior convictions are exempt from the Apprendi jury trial requirement because the fact of a prior conviction “‘does not relate to the commission of the offense’” for which the defendant is being sentenced (Apprendi, supra, 530 U.S. at p. 496), and “the certainty that procedural safeguards attached to any ‘fact’ of prior conviction . . . mitigate[s] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” (Id. at p. 488, fn. omitted.)
“The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. . . . 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.’” [Citation.] (People v. Black (2007) 41 Cal.4th 799, 819-820 (Black II).)
Here, the trial court imposed the upper term sentence based on defendant’s numerous prior convictions. The record established defendant had sustained four prior misdemeanor convictions and two prior felony convictions. As the California Supreme Court held in Black II, counting the number of defendant’s prior offenses falls within the recidivism exception of Apprendi. It does not relate to the commission of the offense, and the procedural safeguards attached to the fact of the prior convictions remain intact. Counting the number of prior convictions requires no subjective or qualitative assessment of those prior convictions. It requires only their existence, a fact the trial court is allowed to determine. Since the trial court may permissibly determine the fact of a prior conviction, it may also determine the number of such prior convictions.
We note that the issue of whether recidivism factors found by the court rather than by a jury violates Cunningham is pending before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., MORRISON, J.