Opinion
F060387 Super. Ct. No. MF50355
10-21-2011
THE PEOPLE, Plaintiff and Respondent, v. SAUL ISLAS, Defendant and Appellant.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Marc A. Garcia, Judge.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, Saul Islas (appellant) was found guilty in counts 1 and 2 of robbery (Pen. Code, § 211) and in count 3 of attempted burglary (§§ 664, 459). Appellant admitted four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced appellant to nine years in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court abused its discretion by permitting the prosecution to introduce evidence in violation of his Sixth Amendment right to confront witnesses against him, and he makes various claims of ineffective assistance of counsel. He also claims cumulative error and sentencing error. We disagree and affirm.
FACTS
On Sunday, November 2, 2008, about 2:00 p.m., Javier Alfaro, a delivery driver for a drug store in Delhi, went to church across the street from the drug store and saw two men near the door to the storage room connected to the side of the drug store. Alfaro thought the men were "trying to open the door" to the storage room. When the men noticed Alfaro looking at them, they walked towards their truck and drove off. Alfaro subsequently identified appellant and Jose Raya-Hernandez in a six-pack photo lineup as the two men he saw near the storage room.
Alfaro was able to write down six of the seven numbers on the truck's license plate, which was registered to appellant's mother, Rosa Islas. Rosa identified the truck as the one appellant drove and said that he had parked it at her house on the evening of November 2, but that it was stolen the following day and later recovered. She identified Raya-Hernandez as the person who lived in her detached garage. According to Rosa, appellant stayed at his girlfriend's house approximately two blocks away.
Several individuals are identified by first name because of duplicate last names.
Sheriff's Deputy Matthew Wagner had seen appellant and Raya-Hernandez near this same truck in June of 2008 when Wagner investigated a call regarding two persons collecting copper wire near the railroad tracks. And Sheriff's Deputy Mark Taylor had stopped appellant driving this same truck in July of 2008. At the time, Raya-Hernandez was a passenger in the truck.
On the morning of November 3, 2008, Alfaro was working in the back of the drug store when he saw two men enter the store, one wearing a Halloween mask. Also working in the store were owner Steven Stoll, his partner Joe Barr, pharmacy technician Sylvia Gonzalez, and employees Maria Carranza and Nancy Cardenas. As one point, Stoll, Gonzalez, and Carranza all heard a voice asking where the "opiates" were. Stoll turned around and saw a man wearing an orange mask pointing a "clip gun" at Barr's head. Gonzalez and Cardenas thought the gun looked fake. Cardenas was able to identify Raya-Hernandez as one of the robbers.
As Barr turned to show the man where the medications were located, a second man wearing a mask yelled from the front of the store for everyone to get down. Stoll and two employees complied. The man with the orange mask then walked to the shelves and began dumping medicine into a box. He then ran to the front of the store and demanded cash from Leticia Lara, who was behind the cash register. She gave him less than $100 in cash. Lara was able to identify both robbers.
When the robbers left, Stoll ran from the store and saw the two men drive off in a black truck. Stoll reported the robbery to the police, and within half an hour of the robbery, officers drove him a couple of blocks from the drug store to where he identified the truck. The truck was parked, but the driver's door was slightly ajar and the engine was still warm.
Reserve Officer Michael Burdick found an identification card belonging to Oscar Simoes on the ground outside the passenger door of the truck. Burdick also heard a cell phone repeatedly ringing inside the truck. The truck was registered to a Jose Simoes. Rosa said that Oscar was her daughter's live-in boyfriend and he and appellant were friends.
Sheriff's Detective Alex Barba, who interviewed Oscar on the afternoon of the robbery, testified that Oscar originally denied knowing anything about the robbery, but eventually, after a polygraph examination, said he let appellant borrow his truck on the day of the robbery, that appellant had to leave the truck because "shit got outta hand," and that appellant told him to report the truck as stolen. Portions of the recorded interview were played for the jury. Cell phone records indicated that Oscar and appellant exchanged calls on the day of the robbery and that appellant had been in the Delhi area around the time of the robbery.
Kenneth Cisneros, who was given use immunity in exchange for his testimony, was with Oscar on the morning of November 3, 2008. At that time Oscar received a phone call from appellant stating that appellant's truck had been stolen. Cisneros, Oscar and appellant looked for appellant's truck, and appellant then borrowed Oscar's truck and left Cisneros and Oscar at a friend's house. A few hours later, Cisneros saw appellant, but he did not have Oscar's truck. Instead, appellant claimed that he left the truck in Delhi because it broke down. When Cisneros and Oscar went to check on the truck, they saw it being towed by the sheriff.
Detective John Ramirez interviewed Cisneros on December 18, 2008, after he was arrested for possession of a methamphetamine pipe. At that time, Cisneros told Ramirez that the suspects in the pharmacy robbery were appellant and his roommate Jose, and that they committed the robbery to steal pills to manufacture methamphetamine. At trial, Cisneros denied Oscar told him who committed the robbery; he denied knowing the identity of the robbers; he denied telling detectives that the suspects were appellant and his roommate and that the motive for the robbery was to take pills to make methamphetamine.
A subsequent search by detectives revealed a replica firearm underneath Raya-Hernandez's bed. Appellant's truck was seen outside the home the day before the search warrant was served.
Detective Sheriff Paul Barile, who had extensive experience with methamphetamine labs, explained that the primary ingredient in methamphetamine is pseudoephedrine. Citing to logs from various drug stores in the area, Barile opined that appellant had been "smurfing," going from store to store to obtain the maximum quantity allowed of cold medication containing pseudoephedrine. Barile's opinion was bolstered by an abstract of judgment showing appellant was previously committed to prison for manufacturing methamphetamine. Barile acknowledged that opiates were not used in the manufacture of methamphetamine.
Defense
Appellant's defense was that he was not involved in the robbery, but that Oscar and Cisneros may have been. Appellant's sister, Claudia Islas, testified that at 7:00 a.m. on November 3, 2008, appellant called to tell her and her ex-boyfriend Oscar that his truck had been stolen. Claudia and Oscar then went with appellant to Turlock to help look for his truck, but were unable to locate it. Later, Claudia and appellant drove to a store in Oscar's truck, and while they were there, someone stole Oscar's truck. Appellant had left his cell phone in the truck.
Records revealed that at 7:00 a.m. on the day of the robbery, Claudia wrote the text message, "when my brother Saul call that's means to report it." (Sic.)According to Claudia, the text message was supposed to say, "my brother called and said he reported his truck." Claudia denied writing the text message to tell Oscar to report his truck had been stolen because appellant had used the truck in the robbery of the drug store.
DISCUSSION
1. Did the trial court violate appellant's Sixth Amendment right to confront witnesses against him?
Appellant contends that the trial court violated his Sixth Amendment right to confront witnesses against him by admitting into evidence at trial: (1) Oscar's preliminary hearing testimony, (2) a videotape of a police interrogation of Oscar, (3) a videotape of a recorded telephone conversation between Oscar and Cisneros, and (4) Detective Barba's testimony about his interrogation of Oscar. We find no prejudicial error.
A. Background
Oscar, when called as a witness at trial, invoked his constitutional privilege against self-incrimination. (U.S. Const., 5th Amend.) The prosecution offered Oscar use, but not transactional, immunity from prosecution.
At trial, Oscar's preliminary hearing testimony, with certain redacted portions, was then admitted under Evidence Code section 1291 without appellant's objection. This testimony, read to the jury, was generally favorable to appellant. For instance, in it Oscar testified that appellant did not ask to borrow his truck on the day of the robberies and that he did not have contact with him that day.
Oscar's preliminary hearing testimony was inconsistent with statements he made to Detective Barba in a videotaped interrogation on November 3, 2008, and in a recorded call to Cisneros from jail. For instance, during the interrogation, he told an officer that appellant had left the truck in Delhi because "shit got outta hand," that appellant told him to have a "good alibi" and report that his truck had been stolen, and that he and Claudia saw appellant when he got back from Delhi. In the phone call Oscar made to Cisneros from jail, he said he did not deserve to be there for "[j]ust letting him borrow the . . . truck . . . if I could . . . rob a . . . drug-store . . . and then he . . . sends me to pick up my truck over there . . . . "
Over objection, Detective Barba, who did not testify at the preliminary hearing but had interrogated Oscar, was permitted to testify as to statements Oscar made during the interrogation. Portions of the videotape were then played for the jury and admitted into evidence without objection. When the prosecutor sought to introduce evidence of the telephone call Oscar made to Cisneros after he was questioned by officers, defense counsel objected on the basis of hearsay and that he had not had the opportunity to cross-examine Cisneros.
In overruling appellant's objection, the trial court reasoned:
"The transcript of the preliminary hearing or the testimony of the preliminary hearing that has been admitted into evidence, at least to theThe court also ruled that, because law enforcement was not involved in the telephone call between Oscar and Cisneros, the call did not implicate Crawford v. Washington (2004) 541 U.S. 36, and it was admissible as a prior inconsistent statement.
Court, clearly indicates [Oscar] . . . subjected himself to having to be impeached by various forms of evidence in testimony.
"He, meaning [Oscar], denies repeatidly [sic]having contacted [appellant] . . . . In fact specifically the question 'during the day had you been making calls back and forth with your brother-in-law,' the answer by [Oscar] is no. 'Had you attempted to contact him at any point during that day? No. Is it your testimony now that you never attempted to call him even once? No.'
"'Did you tell the police that you saw your brother-in-law, [appellant,] later that day? No. Is it your testimony that you did not see him at all?' I did not see him at all that day is the answer.
"'Did you tell the police that he told you quote, "shit got out of hand in Delhi and I leave [sic] the truck there? No.' Then it goes on to repeatidly [sic]indicate that he never made a phone call to . [appellant] that day.
"The proffered testimony as far as the hearsay objection clearly appears to the Court [to] fall[] within an exception to the hearsay rule, particularly prior inconsistent statements. As this indicates that [Oscar] did in deed ... not only have contact, but had phoned [appellant] and also goes to his credibility."
Appellant now argues that admission into evidence of the preliminary hearing testimony, the videotaped interrogation, the recorded telephone call, and Detective Barba's testimony concerning the interrogation of Oscar constitute an abuse of discretion violating his Sixth Amendment right to confront witnesses.
B. Admission of Preliminary Hearing Testimony The confrontation clause of the Sixth Amendment to the United States Constitution guarantees the right of a criminal defendant to confront and cross-examine witnesses who testify against that defendant. (Crawford v. Washington, supra, 541 U.S. at p. 42.) It allows admission of testimonial statements of a witness unavailable at trial "only where the defendant has had a prior opportunity to cross-examine." (Id. at p. 59, fn. omitted.) Pursuant to Evidence Code section 1291, the prior testimony of a witness is admissible only when the witness is unavailable and the defendant had the right and opportunity to cross-examine the witness in the prior proceeding with a similar interest and motive as the defendant has in the current proceeding. (People v. Carter (2005) 36 Cal.4th 1114, 1172.) This principle may apply to admission of the preliminary hearing testimony of an unavailable witness. (Id. at pp. 1172-1173; see People v. Samayoa (1997) 15 Cal.4th 795, 850.)
"Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or [¶] (2) the party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (Evid. Code, § 1291, subd. (a).)
In the present case, appellant does not challenge the trial court's finding that Oscar was unavailable to testify at trial. Instead he contends (1) that Oscar's testimony was offered by the prosecutor, the same "party who offered it in evidence in his own behalf on the former occasion"; and (2) while appellant had the opportunity to cross-examine Oscar at the earlier hearing, he did not then have "'an interest and motive similar to that' which he had at trial." Because we disagree with appellant's latter contention, we need not address the first, as only either subdivision (a)(1) or (a)(2) of Evidence Code section 1291 must be satisfied for the statement to be admissible.
It is undisputed that appellant had the opportunity to cross-examine Oscar at the preliminary hearing and, therefore, the threshold criterion for admissibility of his prior testimony was met. (Crawford v. Washington, supra, 541 U.S. at p. 59.) Appellant argues, however, that his motive and interest in cross-examination at the preliminary hearing differed from his motive and interest at trial. As argued by appellant, Oscar's testimony at the preliminary hearing that appellant did not borrow his truck on the day of the robbery and he did not see him that day was favorable to appellant and appellant had neither motive to, nor interest in, cross-examining Oscar and did so only perfunctorily. At trial, on the other hand, appellant's defense strategy was not only that he was not one of the robbers, but that Oscar was.
The cross-examination conducted at the prior hearing need not be an exact substitute for cross-examination that would be conducted at trial if the witness were present. (People v. Zapien (1993) 4 Cal.4th 929, 975.)
"Frequently, a defendant's motive for cross-examining a witness during a preliminary hearing will differ from his or her motive for cross-examining that witness at trial. For the preliminary hearing testimony of an unavailable witness to be admissible at trial under Evidence Code section 1291, these motives need not be identical, only 'similar.' [Citation.] Admission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitutions—not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant's right to effective cross-examination against the public's interest in effective prosecution. [Citations.]" (Ibid.; see also People v. Carter, supra, 36 Cal.4th at pp. 1172-1173.)
At the preliminary hearing, Oscar testified that he did not speak to appellant on the day of the robbery, appellant did not ask to borrow his truck, he denied telling the police that appellant told him things had gotten out of hand, and he denied making calls back and forth with appellant on that day. Oscar explained his earlier comments to officers by claiming that he felt threatened when questioned by the officers and that he had taken a polygraph test. After the test, when told he had been lying, he told the officers what he thought they wanted to hear.
Defense counsel's cross-examination of Oscar at the preliminary hearing focused on Oscar's claim that he felt threatened by the police and pressured into making statements that were not true and that his statements at the time of the preliminary hearing were true. Thus, while appellant wished to add to his defense theory at trial that Oscar was the robber, his underlying interest at both the preliminary hearing and at trial was that appellant did not commit the robbery. His motive and interest were closely similar, if not identical, at the two proceedings, warranting admission of the preliminary hearing testimony. (People v. Carter, supra, 36 Cal.4th at p. 1173.)
In light of our conclusion, we need not address the People's contention that appellant forfeited this argument by failing to object below and appellant's contention that any failure to preserve the issue constituted ineffective assistance of counsel.
C. Admission of Videotaped Interrogation and the Recorded Telephone Call
Evidence Code section 1294 allows the videotaped statement of a person who is unavailable as a witness to be introduced as evidence in court if the statement was previously introduced at a hearing or trial as a prior inconsistent statement of the witness. This section is designed to overcome the admissibility problems associated with out-of-court statements that are inconsistent with an unavailable witness's former testimony, but it requires that the evidence of the statements be introduced at the prior hearing where the witness actually testified. (People v. Martinez (2003) 113 Cal.App.4th 400, 408-409 (Martinez).)
Evidence Code section 1294 provides, in relevant part: "(a) The following evidence of prior inconsistent statements of a witness properly admitted in a preliminary hearing or trial of the same criminal matter pursuant to Section 1235 is not made inadmissible by the hearsay rule if the witness is unavailable and former testimony of the witness is admitted pursuant to Section 1291: [¶] (1) A video recorded statement introduced at a preliminary hearing or prior proceeding concerning the same criminal matter."
In Martinez, the preliminary hearing testimony of the witness, which was favorable to the defendant, was admitted and read into the record after the witness exercised his Fifth Amendment right not to testify. (Martinez, supra, 113 Cal.App.4th at p. 407.) The defendant claimed his Sixth Amendment right to confront witnesses against him was violated by the subsequent introduction of a recording of statements made by the nontestifying witness to police officers that inculpated the defendant. (Id. at pp. 403, 406-407.) The People argued that the recorded statements were admissible as prior inconsistent statements under Evidence Code section 1294. (Martinez, supra, at p. 403.) The appellate court disagreed, stating:
"A witness's prior inconsistent statement may be admitted at trial, but only if 'offered in compliance with [Evidence Code] Section 770.' (Evid. Code, § 1235.) Under that provision, an inconsistent statement is not admissible unless the witness either testified and was given 'an opportunity to explain or deny the statement' or 'has not been excused from giving further testimony in the action.' (Evid. Code, § 770, subds. (a) & (b).)" (Martinez, supra, 113 Cal.App.4th at pp. 407-408.)
Here, neither the videotaped police interview nor the telephone conversation was introduced into evidence at the preliminary hearing. But we agree with respondent that the items were admissible because, unlike the defendant in Martinez, Oscar, in compliance with Evidence Code section 770, subdivision (a) was "so examined while testifying as to give him an opportunity to explain or deny the statement." During the preliminary hearing Oscar was asked, "[D]id you ever tell the police that [appellant] had borrowed the truck?" Oscar replied, "No." When asked "Did you ever tell the police that [appellant] borrowed the truck for what he said were work purposes on that day?" Oscar stated, "No, I had the keys to the truck, they were on me." When asked, "Did you ever . . . tell the police that you saw [appellant] later that day?" Oscar replied, "No." When asked "Did you tell the police that he told you, quote, 'Shit got out of hand in Delhi and I had to leave the truck there'?" Oscar replied, "No." And when asked, "Did you tell the police that he left it there but didn't know exactly where the truck was in Delhi?" Oscar replied, "No."
Even if we assume that admission of the videotaped interview and telephone conversation was error, we find no prejudice. If other properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless. (People v. Schmaus (2003) 109 Cal.App.4th 846, 860; see also Martinez, supra, 113 Cal.App.4th at p. 410.)
Aside from Oscar's statement during the police interrogation and his call to Cisneros, there was substantial evidence to implicate appellant in the attempted burglary and robbery of the drug store. As to the attempted burglary, Alfaro identified both appellant, Raya-Hernandez, and appellant's truck as being involved in the attempted burglary of the pharmacy.
As to the robbery, Lara was able to identify Raya-Hernandez. Stoll identified the truck used in the robbery. Appellant's cell phone was found in the truck used in the robbery of the pharmacy and phone records confirmed that appellant's phone had been in the area of the pharmacy at the time of the robbery.
Cisneros testified that appellant borrowed Oscar's truck on the day of the robbery. Cisneros told an officer that appellant and his roommate Jose committed the robbery to steal pills to manufacture methamphetamine. Cisneros's statement was corroborated in part by evidence from various drug stores in the area that appellant had been tracked purchasing cold medicine containing pseudoephedrine, the primary ingredient in methamphetamine, on multiple occasions. An officer opined that appellant had been going store to store, or "smurfing," to buy the maximum amount of cold medicine permitted by law with the intent of manufacturing methamphetamine.
A search of Rosa's residence uncovered a replica firearm matching the one used in the robbery. The replica was found under the bed in the attached garage where Raya-Hernandez lived.
Given the overwhelming evidence before the jury, the admitted statements by Oscar were merely cumulative of the other evidence. Any error in admission of Oscar's videotaped statements and telephone conversation were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
In light of our conclusion, we need not address the People's contention that appellant forfeited admission of the videotape interrogation by failing to object below and appellant's contention that any failure to preserve the issue constituted ineffective assistance of counsel.
D. Admission of Detective Barba's Testimony Concerning Oscar's Interrogation
Appellant argues in his reply brief that "[r]espondent has made no counter-argument [to this issue] and thus has effectively conceded the validity of appellant's position." We will address the issue on the merits.
As noted earlier, Oscar was unavailable as a witness at trial and his preliminary hearing testimony, which was generally favorable to appellant, was read to the jury. Over appellant's objection, Detective Barba, who did not testify at the preliminary hearing, was permitted to testify at trial as to prior statements Oscar made to him during interrogation which were inconsistent with Oscar's preliminary hearing testimony.
Detective Barba testified that Oscar initially denied knowledge of the robbery, but then contradicted himself. Barba then administered a polygraph examination on Oscar that showed "deception to the relevant questions or the questions that had to do with the robbery." Oscar then admitted to Barba that he lied to protect appellant and that appellant had asked to borrow his truck on the morning of the robbery and that he did see appellant after he returned from Delhi that day.
Relying on People v. Williams (1976) 16 Cal.3d 663 (Williams), appellant contends there is no authority which justifies admission of Detective Barba's testimony and, as a result, he was denied his right to confront witnesses against him. In Williams, a suspect arrested for robbery made a statement to police implicating the defendant. At the preliminary hearing, the People called the suspect but failed to elicit testimony from him adverse to the defendant. (Id. at p. 665.) The People then called the officer who testified that the suspect had indeed made these statements to him. (Ibid.)At trial, the suspect was declared an unavailable witness, his preliminary hearing testimony admitted (former Evid. Code, § 1291, subd. (a)(2)), and the police officer then repeated his testimony concerning the suspect's prior inconsistent statements implicating the defendant, admitted under Evidence Code section 1235. (Williams, at p. 666.) The defendant contended on appeal that admitting the officer's testimony regarding the suspect's prior inconsistent statements violated his right of confrontation. (Ibid.)
Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770."
The Williams court agreed that because the suspect did not testify at trial—the "hearing" envisioned by Evidence Code section 1235—those statements were not inconsistent with his testimony "at the hearing," and the officer's testimony regarding the suspect's inconsistent statements was not admissible under that section. (Williams, supra, 16 Cal.3d at p. 669.) The Williams court went on to find the error prejudicial because the only other evidence incriminating the defendant was the store manager's identification of him based solely on the defendant's stature and voice. All of the suspects were masked during the robbery. None of the other five witnesses viewing the lineup was able to identify the defendant. (Ibid.)
Here, we need not decide whether Detective Barba's testimony was admissible under Evidence Code section 1235 because we find any error harmless. As discussed in part 1.C., ante, given the overwhelming evidence before the jury, the admitted testimony by Detective Barba was merely cumulative of the other evidence. Any error in admission of this testimony was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
2. Did appellant receive ineffective assistance of counsel?
Appellant argues a number of instances of ineffective assistance of counsel. Because we have addressed some of his concerns on the merits, we need not repeat the analysis on those particular instances here. Instead, we address his remaining allegations that trial counsel was ineffective for (1) stipulating to the admission of evidence that Oscar had taken a polygraph test and (2) inadequately cross-examining Detective Barba regarding the accuracy of polygraph tests.
In order to prevail on an ineffective assistance of counsel claim, appellant must demonstrate that trial counsel's performance fell below the standard of reasonableness and that there is a reasonable probability the result would have been more favorable had his counsel provided adequate representation. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Bolin (1998) 18 Cal.4th 297, 333.) Appellant must also show that the omission was not the result of a reasonable tactical decision. (People v. Gurule (2002) 28 Cal.4th 557, 611.) However, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington, supra, at p. 697.) Using these standards, we conclude appellant's ineffectiveness claims must fail.
A. Background
As noted previously, during Oscar's interrogation, he first denied any knowledge of or involvement in any robbery at the drug store. Oscar then agreed to, and did, take a polygraph test. After Detective Barba told Oscar that the test showed he was lying, Oscar admitted he was lying and that he did so to protect appellant. He also admitted that he loaned appellant his truck at appellant's request and that he had seen appellant when he returned from Delhi.
At the preliminary hearing, defense counsel questioned Oscar as to whether he felt pressured during the interrogation. Oscar testified that he felt that the detectives required him to take the polygraph test, that he took it, and that the officers then said he was lying.
At trial, when the trial court admitted Oscar's preliminary hearing testimony, it raised the issue of admissibility of defense counsel's cross-examination of Oscar relating to the polygraph evidence. The court stated it would exclude "any reference to polygraph examinations" absent a stipulation by the parties. Both parties then stipulated to the admission of the polygraph evidence. The jury then heard Oscar's preliminary hearing testimony regarding the polygraph test.
At trial, Detective Barba testified that he gave Oscar a polygraph examination and Oscar's responses showed deception when answering questions about the robbery. Defense counsel then cross-examined Barba regarding the accuracy of polygraph tests as follows:
"[DEFENSE COUNSEL] Q. ... Now, you stated earlier, as well as testimony right now, that a polygraph shows deception, right?
"[BARBA] A. Correct.
"Q. What does that mean?
"A. . I asked [Oscar] three questions that were relevant to the case, one of them being, 'Did you have . . . any involvement with the robbery of the drugstore in Delhi?' Another question was 'Do you know for sure who was involved in the robbery at the drug store in Delhi?' And another one was 'Do you suspect anyone in particular of—'
"Q. I understand that, but I guess my question is the term of art you used in terms of deception regarding polygraphs, what does that essentially mean?
"A. That he's lying.
"Q. So, you know 100 percent sure that he was lying based on his results?
"A. Yes.
"Q. 100 percent sure?
"A. That's my opinion. I've done a few hundred and—
"Q. With no doubt whatsoever?
"A. No.
"Q. [H]ere's what's [sic] I'm trying to ask you regarding the polygraphs. Is there no margin of error or anything that comes with the test?
"A. No, there's a margin of error on anything, even an eye witness.
"Q. So, to your knowledge, you know what the measurement is of error in a polygraph test?
"A. No, I just know that it's accurate. It's in the 90's— [¶] . . . [¶] [a]ccuracy."
B. Stipulation to Admission of the Polygraph Examination and Cross-examination of Detective Barba
Appellant contends counsel was ineffective for both stipulating to the admission of evidence that Oscar had taken a polygraph test and for then inadequately cross-examining Detective Barba.
Here we find no unconstitutionally ineffective assistance of counsel.
"'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
It is well established that evidentiary stipulations are "tactical trial decisions which counsel has discretion to make without the express authority of the client." (People v. Adams (1993) 6 Cal.4th 570, 578.) In addition, a trial counsel's decision regarding the cross-examination of witnesses falls within the range of tactical decisions and rarely implicates ineffective assistance of counsel. (People v. McDermott (2002) 28 Cal.4th 946, 993.)
Here, both defense counsel's stipulation to the polygraph examination and his cross-examination of Detective Barba were reasonable tactical decisions. Appellant's defense was that he did not commit the robbery but that Oscar did. By highlighting the polygraph exam, appellant was able to argue that Oscar was not credible and should not be believed.
We find no ineffective assistance of counsel.
3. Did the trial court err in admitting evidence of appellant's prior conviction for manufacturing methamphetamine?
Appellant contends that the trial court abused its discretion by admitting evidence of his prior conviction for manufacturing methamphetamine. Appellant argues that the prior crime evidence constituted improper propensity evidence and was collateral, remote, cumulative and unduly prejudicial under Evidence Code sections 1101 and 352. We disagree.
A. Background
During Detective Barile's testimony, the prosecutor introduced an abstract of judgment (exhibit 130) and a minute order (exhibit 131) relating to appellant's 2002 conviction for manufacturing methamphetamine. It appears that defense counsel had earlier objected to admission of these documents because the trial court noted counsel's continuing objection. Barile testified that evidence of appellant's multiple purchases of decongestant at various pharmacies, as well as his prior conviction, supported Barile's opinion that appellant was "involved in smurfing," a process whereby a person goes from store to store buying the maximum legal quantity of pseudoephedrine, the primary ingredient in methamphetamine. The court then reconsidered its position and excluded the abstract of judgment, but admitted the minute order into evidence with certain redactions. Subsequent jury instruction directed the jury to consider the evidence only to show motive.
B. Applicable Law and Analysis
Evidence of uncharged misconduct is generally inadmissible to show bad character or criminal disposition, but it may be admitted to prove some material fact at issue, such as motive, intent, knowledge, or identity. (Evid. Code, § 1101; People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Because of the prejudice inherent in other crimes evidence, the evidence must have substantial probative value to be admissible. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Once a trial court determines the misconduct evidence is relevant, it must then undertake an evaluation under Evidence Code section 352 to determine whether the probative value is substantial and not outweighed by the probability that the evidence would be unduly prejudicial, confusing, or misleading to the jury. (Ewoldt, supra, at p. 404; People v. Kipp (1998) 18 Cal.4th 349, 371.) We review the trial court's ruling on uncharged misconduct evidence for abuse of discretion. (Kipp, supra, at pp. 369, 371.)
Motive is an intermediate fact which may be probative of the ultimate issue of identity. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018; People v. Morales (1979) 88 Cal.App.3d 259, 264.) For instance, in People v. Felix (1994) 23 Cal.App.4th 1385, a detective testified that the defendant stated during an interview that he had burglarized his sister's home to steal something to sell and to buy heroin with the proceeds from the sale. (Id. at p. 1392.) The Felix court held that, because the defendant's own statements showed a direct connection between the charged burglary at his sister's and his own drug use, the defendant's drug addiction evidence directly proved motive for the burglary and was properly admitted. (Id. at pp. 1393-1394.) But the Felix court also concluded that it was error to allow the drug addiction evidence to be considered for a second burglary committed several weeks later at a different residence. (Id. at p. 1395.)
Contrary to appellant's assertions, the evidence of his prior conviction for manufacturing methamphetamine was relevant to disputed issues other than mere propensity or disposition to commit the charged act. Cisneros told officers that appellant committed the robbery to obtain pills to manufacture methamphetamine. Detective Barile testified that appellant made multiple purchases of decongestant at various pharmacies. He opined that appellant made these purchases in order to obtain the maximum legal quantity of pseudoephedrine, the primary ingredient in methamphetamine. These purchases, in conjunction with appellant's prior conviction for manufacturing methamphetamine, bolstered Cisneros's testimony as to the purpose of the robbery. The record supports a finding that the uncharged prior conviction was highly probative on the issue of motive, which in turn was relevant to the disputed issue of identity of the person or persons who committed the robbery.
As to the question of remoteness, we conclude that the prior act was not unduly remote. The prior conviction occurred in 2002; the current offense in 2008. As a result, the court did not abuse its discretion in admitting appellant's prior conviction.
The trial court's conclusion that the prior conviction evidence was more probative than prejudicial was similarly not an abuse of discretion. Under Evidence Code section 352, "the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Cole (2004) 33 Cal.4th 1158, 1195.) "Undue prejudice" has a distinct meaning. It refers to evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (People v. Samuels (2005) 36 Cal.4th 96, 124.) Undue prejudice is not synonymous with evidence that is merely damaging to the defendant. (People v. Bolin, supra, 18 Cal.4th at p. 320.) The evidence here was certainly damaging to appellant, but we cannot conclude it "'uniquely tend[ed] to evoke an emotional bias against [appellant], while having only slight probative value with regard to the issues.'" (People v. Samuels, supra, at p. 124.) The prior conviction was less egregious than the current charges and was relevant to appellant's motive.
4. Cumulative error?
Appellant contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected appellant's claims of error and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
5. Did the trial court improperly rely on dual use of facts in imposing sentence?
Appellant contends that the trial court violated the proscription against dual use of facts by using his prior conviction as the basis for both imposing the aggravated term and imposing the sentence enhancements pursuant to section 667.5, subdivision (b). We disagree.
Section 1170, subdivision (b) provides, in relevant part, that "the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." California Rules of Court, rule 4.420(c) provides:
"To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so."
Appellant was sentenced to a total of nine years in state prison. At sentencing, the trial court imposed the upper term of five years on counts 1 and 2 and the upper term of one year six months on count 3, with the terms for counts 2 and 3 to be served concurrently with the term in count 1. The court also imposed 4 one-year enhancements under section 667.5, subdivision (b) for appellant's four prior prison terms, to be served consecutive to the term in count 1.
In imposing sentence, the trial court stated that it found the aggravated term appropriate because of "the serious nature of these offenses, the prior poor performance with regard to probation and parole, the fact that [appellant] was on probation or parole when the crime was committed, and other factors reflected in page six of the probation department's report and in conformance with . . . California Rules of Court[, rule 4.421(b)(1)-(5)]."
California Rules of Court, rule 4.421(b) lists factors in aggravation "relating to the defendant" including that (1) the defendant engaged in violent conduct that indicates a serious danger to society; (2) the defendant's prior convictions are numerous and of increasing seriousness; (3) the defendant served a prior prison term; (4) the defendant was on probation or parole when the crime was committed; and (5) the defendant's prior performance on probation or parole was unsatisfactory.
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Appellant argues that the trial court improperly used his prior prison terms both to aggravate his sentence and as the basis of sentence enhancements pursuant to section 667.5, subdivision (b), which calls for a one-year term for each prior prison term served. Appellant relies on People v. McFearson (2008) 168 Cal.App.4th 388, 395, in which we held that because a section 667.5 subdivision (b) enhancement is based on the fact of a prior conviction, not a prior prison term (cf. People v. Prather (1990) 50 Cal.3d 428, 439-440), the court could not use a prior conviction to impose an aggravated sentence and also use the prison term served for that conviction to enhance the sentence under section 667.5, subdivision (b).
But here, in contrast to McFearson, the trial court did not rely on any single fact to impose the upper term and enhancements; the court cited numerous factors, including the serious nature of the offenses, appellant's parole status at the time of the crimes and, as cited in the probation report, convictions other than the four that resulted in prison term enhancements Thus, there were "numerous" convictions apart from those that supported the prison terms. A single aggravating factor will support an upper term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728.) Given the valid aggravating factors and the lack of any mitigating circumstances, the court properly imposed both the upper terms and the prior prison term enhancements.
DISPOSITION
The judgment is affirmed.
DAWSON, J. WE CONCUR: CORNELL, Acting P.J. DETJEN, J.