Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS052108A
Premo, Acting P.J.
In an opinion filed June 27, 2007, this court reversed the conviction of defendant Antonio Lopez Lopez in his appeal of judgment on convictions of residential burglary (Pen. Code, § 459) and transportation of a controlled substance, methamphetamine (Health & Saf. Code, § 11379, subd. (a)). We remanded the matter for the limited purpose of resentencing with respect to the first degree burglary conviction. We held that the imposition of the aggravated term on the burglary count based on five court-determined aggravating factors was error. The California Supreme Court granted defendant’s petition for review and transferred the matter back to this court for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On reconsideration, we affirm the conviction.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant filed a supplemental opening brief after remand acknowledging that Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, binds this court to follow the decisions of Black, supra, 41 Cal.4th 799, and Sandoval, supra, 41 Cal.4th 825. Nevertheless, defendant presents additional argument in the supplemental brief in order to preserve the issue for federal review. Defendant argues that the sentence imposed by the trial court violated Cunningham v. California (2007) 549 U.S. __, [127 S.Ct. 856] (Cunningham) because it imposed an upper term sentence based on aggravating factors found by the judge, some of which violated Cunningham and some of which did not. When a sentencing judge imposes an upper term after finding circumstances in aggravation in a manner that violates the Sixth and Fourteenth Amendments, it has committed federal constitutional error under Cunningham. The only remaining question is whether the error is harmless. According to defendant, the plain language of Cunningham does not permit a conclusion that there is no error at all.
FACTS
Giselle C., 14 years old at the time of trial, was at home on Old Stage Road in Monterey County taking care of her three younger sisters on the morning of July 15, 2005. They heard footsteps on the porch, and Giselle saw a male in a partially constructed room by the porch. The children went into their parents’ room because it had a lock. Giselle heard multiple (probably more than two) people whispering. Giselle heard, “ ‘Is someone there?’ ” whispered at least twice.
Convenience, not disrespect is intended by use of the parties’ first names. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 280.)
Several minutes later, Giselle heard car doors slam. About three minutes later, she heard her father, Arnoldo Sanchez, ask if she and her sisters were all right. He then ran out. When Giselle came out of the bedroom, she noticed that the television was missing and that “all kinds of stuff [had been] thrown [around] in the living room.”
Sanchez arrived home at about 10:00 a.m. on July 15, 2005. He observed defendant located about three meters from the front door. Sanchez and defendant got within about one meter of each other, and Sanchez asked, “ ‘What are you looking for?’ ” Defendant responded that “they were looking for this man named Lopez.” Sanchez saw a minivan parked very close to the house with a woman in the driver’s seat and a man dressed as a woman in the middle of the back seat. He also observed that there was a cord dangling out of the back of the van. Sanchez said no one named Lopez lived at the house and that defendant should leave. Defendant said that they were leaving and got into the front passenger seat. Sanchez moved his vehicle in order to allow the minivan to leave.
Sanchez later testified that the cord was the cable to his stolen television set.
When Sanchez walked into his house--the front door was ajar--the first thing he noticed was that his television was missing and there were some items dropped on the floor. He called out to his daughters to see if they were all right, and one of them said that they were fine. Sanchez then got into his car with his ranch worker, Nestor Amarillias, to follow the minivan. Sanchez caught up with defendant and his associates approximately two to three miles away, and he began honking to try to get the van to stop. Because the van did not stop, Sanchez called the police. He continued to follow defendant; the van stopped about five or six miles from Sanchez’s house, the driver and the passenger in the back seat exited, and defendant got into the driver’s seat and drove off. Defendant drove the van fast and Sanchez continued the pursuit.
Defendant eventually stopped the van, got out, and started running; he left the engine running. Amarillias chased defendant, while Sanchez continued talking on the phone with the police and describing where the two vehicles were located. After Sanchez saw Amarillias struggling with defendant, he joined the chase; he and Amarillias caught up with defendant and subdued him.
A Salinas police officer arrived and arrested defendant. Sanchez’s television and various tools that Sanchez used on his ranch (weed whacker, leaf blower, gas can, and tool box with miscellaneous tools, and hair clipper) that had been stored on Sanchez’s front porch were recovered from the van by a Monterey County Sheriff’s deputy who also recovered a Marlboro box containing .61 grams of methamphetamine from defendant’s pocket.
Salinas Police Officer Stephen Craig interviewed defendant (who was using the name “Jose Martinez”) on June 25, 2004, about a prowling incident in which defendant had been seen leaving the backyard of a Salinas home on Meadow Drive. Two weeks earlier, defendant had been observed burglarizing a garage at the same location. Officer Craig interviewed defendant with Officer Dagoberto Zubiate, who acted as a Spanish-speaking interpreter.
The court ruled after a hearing pursuant to Evidence Code section 402 that Officer Craig’s testimony was admissible. This ruling concerning admissibility is challenged by defendant on appeal.
After being advised of his Miranda rights, defendant said that he had been in the backyard looking for a friend of his. Defendant “then changed his story and told [the officers] that he was a mechanic and that he had keys to a vehicle that he was going to be working on in the backyard. And . . . he [then] . . . spontaneously told Officer Zubiate that he didn’t go into the garage and didn’t steal things[, e]ven though [the officers] hadn’t mentioned that at the time [and had] only asked him why he was in the backyard.”
Miranda v. Arizona (1966) 384 U.S. 436.
No fingerprints were sought from the house and evidence from the minivan and defendant was unable to be connected to the registered owner of the minivan.
Defendant was charged with first degree burglary (§ 459, count 1); assault with force likely to produce great bodily injury (§ 245, subd. (a)(1), count 2); transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a), count 3); possession of a controlled substance (id., § 11377, subd. (a), count 4); receiving stolen property (§ 496, subd. (a), count 5); and forgery (§ 470, subd. (a), count 6). Count 2 was dismissed before trial. Immediately after announcing the dismissal, the trial judge recited the parties’ understanding that no evidence would be presented concerning counts 5 and 6, and that the case would proceed to trial on the burglary charge (count 1), the transportation of a controlled substance charge (count 3), and the controlled substance possession charge (count 4, a lesser included offense to count 3).
The clerk’s transcript for proceedings on November 14, 2005, reflect the court’s dismissal of “count 3,” which is listed under the heading “charges” as the aggravated assault charge. Notwithstanding this conflicting entry, it is clear from the reporter’s transcript that it was count 2 that was dismissed.
Defendant was found guilty by a jury of first degree burglary and transportation of a controlled substance. He was sentenced to the aggravated term of six years in state prison on the burglary and one year consecutive for the drug transportation count. The court used five factors in aggravation in selecting the aggravated term on the burglary count. They were: (1) the victims were particularly vulnerable (four children between the ages of three and 14 who were home alone), (2) the crime showed planning, sophistication, or professionalism, (3) defendant’s prior convictions were numerous and of increasing seriousness, (4) defendant was on felony probation at the time the offense was committed, and (5) defendant’s prior performance on probation was unsatisfactory. (Cal. Rules of Court, rule 4.421, hereafter rule.)
ISSUES ON APPEAL
In his initial appeal, and as we discuss here, defendant claimed that under Blakely v. Washington (2004) 542 U.S. 296, he was entitled to have a jury determine beyond a reasonable doubt any aggravating facts that were used as prerequisites to the imposition of an upper term sentence. We found, based upon a recent controlling decision of United States Supreme Court, Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], that there was Blakely error.
Defendant also contended that the court erred in admitting a statement he made to police in connection with a prior, unrelated burglary investigation. The statement was obtained through a police interpreter, but his partner, the officer who interrogated defendant in English, was the witness who testified at trial to the substance of defendant’s prior statement. Defendant contends that this evidence was inadmissible hearsay because it did not meet the “language conduit” test articulated in Correa v. Superior Court (2002) 27 Cal.4th 444 (Correa) and that its admission violated his Sixth Amendment confrontation rights in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We concluded that the court did not abuse its discretion by the admission of this statement because the translated statement was defendant’s own statement and as such, its admission did not violate defendant’s constitutional right of confrontation. We do not alter this section of the opinion.
SENTENCING
We originally found that the aggravating factors could not be used to impose the upper term sentence because the factors were not admitted by the defendant or found true by the jury. We relied on Cunningham, supra, 549 U.S. at page __ [127 S.Ct. at p. 868], for the proposition that the middle term of four years was the “statutory maximum” for Sixth Amendment purposes under Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466. Apprendi relied on Almendarez-Torres v. United States (1998) 523 U.S. 224 for the “bright line rule” that “[e]xcept 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.’ ” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) We rejected aggravating factors (1), the vulnerability of the victims, and (2), the sophistication or professionalism of the crime, out of hand because they did not involve defendant’s recidivism.
We also stated that the third factor, that defendant’s convictions were numerous and of increasing seriousness (rule 4.421(b)(2)) were not matters strictly determined by the fact of the convictions alone. The qualitative aspects of this factor--that the convictions were “numerous” and “of increasing seriousness”--were not previously determined by a jury beyond a reasonable doubt. In addition, the fourth aggravating factor, that defendant was on felony probation at the time the offense was committed (rule 4.421(b)(4)), and the fifth factor, that defendant’s performance on felony probation was not satisfactory (rule 4.421(b)(5)), did not fall within the Apprendi “prior conviction” exception.
Approximately three weeks after our opinion was filed the California Supreme Court filed Black and Sandoval on July 19, 2007. As is relevant in this case, Black held that the prior-conviction exception applies to related issues that may be determined by examining the records of prior convictions, such as whether defendant’s prior convictions were numerous or increasingly serious. (Black, supra, 41 Cal.4th at pp. 819-820.)
In our case, the Black factor was our factor (3), that defendant’s prior convictions were numerous and increasingly serious. A single “aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely” renders the defendant “not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Black, supra, 41 Cal.4th at p. 813.)
With this single factor properly found, the trial court did not deprive defendant of his Sixth Amendment rights in sentencing him to the aggravated term for burglary. Accordingly, we will vacate the previous decision.
ADMISSIBILITY OF DEFENDANT’S STATEMENT
Defendant complained on appeal that the testimony relating his out-of-court statement to the Salinas police officers did not satisfy the Correa, supra, 27 Cal.4th 444 language conduit test, with the side-issues that it was inaccurately translated, the translating police officer had a motive to mislead and distort, and the trial court was biased.
In a hearing in limine for determining the admissibility of Officer Craig’s testimony about defendant’s out-of-court statement about a prior (2004) incident pursuant to Evidence Code section 402 (402 hearing), the prosecutor stated that the interpreter who assisted Craig, former Salinas Police Officer Dagoberto Zubiate, had retired from the force. Craig testified that Zubiate was a certified interpreter with the police department for approximately 10 years, and that he had known him for approximately three years and had used him as an interpreter approximately 15 to 20 times. Zubiate translated Craig’s questions from English to Spanish, and defendant’s answers from Spanish to English.
Officer Craig stated that on June 25, 2004, defendant was observed exiting the backyard of a residence on Meadow Drive. Defendant “initially told [the police] that he’d gone back there to meet a friend of his. And then he changed his story and said that he’d been given some keys, and he was going back there to work on a brown car because he was a mechanic.” Craig testified that during the interview, defendant volunteered that “he had not gone into the garage and he didn’t steal things or he didn’t rob things.” (There had been a burglary of the garage at the same location 11 days earlier.) At the time defendant volunteered this statement, the officers had not been talking to defendant about a burglary, but were only asking him about his presence in the backyard of the Meadow Drive home.
Immediately before announcing his ruling at the in limine hearing, the trial judge noted his familiarity with Officer Zubiate, stating that he had “previously heard Officer Zubiate testify as a certified interpreter a number of times. Probably at least 10 or 15 over the past 15 or 16 years.” The court then ruled that Officer Zubiate was a “language conduit” for the defendant and that Officer Craig’s testimony was admissible, relying on Correa, supra, 27 Cal.4th 444. There, the Supreme Court stated that the participation of translators interpreting for officers interrogating witnesses does not interpose a layer of hearsay making the officers’ and interpreters’ testimony of the declarants’ statements multiple hearsay because the officers were recounting the statements of the interpreters rather than of the declarants. (Id. at p. 448.) “Rather, a generally unbiased and adequately skilled translator simply serves as a ‘language conduit,’ so that the translated statement is considered to be the statement of the original declarant, and not that of the translator.” (Ibid.) Further, although Correa concerned the statements of third party witnesses, the Supreme Court observed that the language conduit doctrine had been applied in instances in which the criminal defendant made an admission or confession through an interpreter. (Id. at p. 456.)
Whether the translator’s statement will be deemed that of the declarant “calls for a case-by-case determination whether, under the particular circumstances of the case, the translated statement fairly may be considered to be that of the original speaker.” (Correa, supra, 27 Cal.4th at p. 457.) The Supreme Court approved of the “measured approach” (ibid.) articulated in U.S. v. Nazemian (9th Cir. 1991) 948 F.2d 522, 525-527 (Nazemian), for determining whether the translated statement is deemed fairly attributable to the speaker. According to Nazemian, there are “ ‘a number of factors which may be relevant in determining whether the interpreter’s statements should be attributed to the [declarant] . . ., such as which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter’s qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated.’ ” (Correa, supra, 27 Cal.4th at p. 458, quoting Nazemian, supra, 948 F.2d at p. 527.)
A police officer may testify about the contents of an extrajudicial confession even though it may have been translated from a foreign language unknown to the officer. (Correa, supra, 27 Cal.4th at p. 461, citing People v. Torres (1989) 213 Cal.App.3d 1248 (Torres).) “[A]n experienced officer may provide meaningful assistance by testifying, . . . regarding the context in which the original declaration was made. The officer may explain the circumstances under which the translator was pressed into service, the apparent language skills of the translator, and the potential for bias on the part of the translator. The officer also may testify regarding such circumstances of the crime or incident under investigation as may corroborate the translation and aid the magistrate in determining not only whether the translation is reliable, but also whether the underlying statement of the declarant is reliable.” (Correa, supra, 27 Cal.4th at pp. 465-466.)
There may be cases in which the interpreter should be called to testify. (Correa, supra, 27 Cal.4th at pp. 458-459.) “ ‘[W]here the particular facts of a case cast significant doubt upon the accuracy of a translated [statement], the translator or a witness who heard and understood the untranslated [statement] must be available for testimony and cross-examination at the . . . hearing before the [statement] can be admitted.’ ” (Id. at p. 459, citing U.S. v. Martinez-Gaytan (5th Cir. 2000) 213 F.3d 890, 891; cf. U.S. v. Lopez (2nd Cir. 1991) 937 F.2d 716, 724 [“[e]xcept in unusual circumstances,” translator is merely language conduit and translation is not additional level of hearsay].)
Turning to this case, as a reviewing court, we must draw all legitimate inferences in favor of the implicit determination of the trial court that Officer Zubiate was sufficiently skilled and unbiased such that the translated statement was fairly attributable to defendant. (Correa, supra, 27 Cal.4th at p. 467.) We review for abuse of discretion the trial court’s decision to admit evidence following the foundational hearing conducted pursuant to Evidence Code section 402. (Correa, supra, 27 Cal.4th at p. 467; People v. Williams (1997) 16 Cal.4th 153, 196.)
The trial court did not abuse its discretion by finding that defendant’s statements translated by Officer Zubiate were fairly attributable to defendant. As we read Correa, Nazemian, and other cases addressing the language conduit issue, no one factor is determinative. Thus, the fact that it was the police who supplied the interpreter--a point emphasized by defendant here--does not undercut the trial court’s conclusion. (Nazemian, supra, 948 F.2d at p. 527 [“fact that the interpreter is provided by the government, in and of itself,” is not dispositive of whether interpreter’s statement is attributable to declarant]; Torres, supra, 213 Cal.App.3d at p. 1259 [same].)
Although defendant argues to the contrary, the record does not show that Officer Zubiate had a “motive to mislead or distort,” the second factor mentioned in Nazemian. (Nazemian, supra, 948 F.2d at p. 527; Correa, supra, 27 Cal.4th at p. 458.) There is nothing to suggest that Zubiate distorted anything that was said by defendant during the interview. The mere fact that the interpreter was a member of law enforcement is an insufficient basis for us to conclude that he had a motive to mislead or distort in translating Officer Craig’s questions and defendant’s responses to them. Significantly, defendant ignores the point that defendant’s critical statement (as translated by Zubiate) did not inculpate defendant at the time it was made. The significance of the evidence was that defendant’s statement to the police in 2004 that he had gone to the recently burglarized home to meet a friend was the same kind of false explanation that he had given in 2005 when confronted by Sanchez on the front porch of Sanchez’s home. The earlier statement was thus admissible under Evidence Code section 1101, subdivision (b) to show intent or common scheme or plan. Therefore, even assuming bias on Officer Zubiate’s part, the 2004 statement on its face does not suggest that it was distorted to implicate defendant in any criminal activity.
“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) At the outset of the trial, the court concluded that defendant’s prior (2004) statement to police was sufficiently similar to his statement to Sanchez in 2005 that it satisfied the admissibility requirements of Evidence Code section 1101, subdivision (b). Defendant does not contend on appeal that, assuming his translated statement was admissible under the language conduit theory, the court erred by admitting it pursuant to Evidence Code section 1101, subdivision (b).
We note that Officer Craig testified that he created a ruse--by showing defendant copies of fingerprints and falsely suggesting that they belonged to defendant and were taken from the garage door after the burglary--in an attempt to implicate defendant during the June 2004 interview. But the record fairly reflects that Officer Zubiate’s only participation in this ruse was to translate Craig’s questions. In any event, as we have noted, since the statement at issue here did not inculpate defendant, the existence of Craig’s ruse does not undermine the trustworthiness of defendant’s translated statement.
The third Nazemian factor--“ ‘the interpreter’s qualifications and language skill’ ” (Correa, supra, 27 Cal.4th at p. 458, quoting Nazemian, supra, 948 F.2d at p. 527)--supports the trial court’s conclusion concerning the admissibility of defendant’s statement. The evidence was that Officer Zubiate had acted as a certified interpreter with the Salinas Police Department for approximately 10 years. Officer Craig had utilized and relied on Zubiate’s services as an interpreter on approximately 15 to 20 occasions. Although Craig is not proficient in Spanish, he testified that he had previously observed Zubiate testify in court by translating from Spanish to English. Moreover, during the interview, Craig noted that defendant’s responses to questions seemed appropriate and that defendant did not act unusual in any way during the interview. From this testimony, the court could have reasonably inferred that there was no problem with Officer Zubiate’s translation of the questions and answers. (See Correa, supra, 27 Cal.4th at pp. 465-466: An experienced officer may testify concerning context of translated statement, including “apparent language skills of the translator, and the potential for bias on the part of the translator [and] . . . such circumstances of the crime or incident under investigation as may corroborate the translation and aid the magistrate in determining not only whether the translation is reliable, but also whether the underlying statement of the declarant is reliable.”)
Defendant contends that the trial court’s statement about his familiarity with Officer Zubiate’s translating abilities before finding defendant’s extrajudicial statement admissible evidenced a bias on the part of the trial judge and/or his reliance upon matters not before him in making the ruling. We reject that claim and take at his word the trial judge’s comment immediately following the remarks on his personal familiarity with Officer Zubiate, “But, I’m not going to base my decision on that.”
Furthermore, defendant points to no aspect of his statement that he contends was inaccurately translated, nor does he identify any particular fact that suggests that the translator was not competent or did not render an accurate translation. (Nazemian, supra, 948 F.2d at p. 528 [noting absence of evidence that translation was inaccurate]; U.S. v. Koskerides (2nd Cir. 1989) 877 F.2d 1129, 1135 [same].) The record shows that Officer Zubiate’s role was simply that of translator, and there is nothing indicating that he exceeded that role. (Nazemian, supra, 948 F.2d at p. 528.) While we acknowledge that it was the prosecution’s burden at the 402 hearing to establish the reliability of the translation (and thus the admissibility of the translated statement under the language conduit theory), it is nonetheless significant that there were no facts presented below (e.g., through defendant’s cross-examination of Officer Craig) suggesting that Zubiate was not competent or that he gave an inaccurate translation.
Here, there was substantial evidence upon which the trial court based its conclusion that defendant’s statements made through Officer Zubiate were fairly considered to have been those of defendant. This is not an instance “ ‘where the particular facts of a case cast significant doubt upon the accuracy of a translated [statement], [thereby requiring that] the translator or a witness who heard and understood the untranslated [statement] . . . be available for testimony and cross-examination . . .’ ” (Correa, supra, 27 Cal.4th at p. 459.) We find no abuse of discretion by the court and conclude that there was no error.
Our finding that the court properly concluded that defendant’s statements made through Officer Zubiate were admissible because they were fairly considered to have been those of defendant necessarily disposes of defendant’s contention that the statements were inadmissible under Crawford, supra, 541 U.S. 36. Crawford concerned Sixth Amendment’s guarantee of the right of confrontation as applied to an unavailable witness’s out-of-court testimonial statement against a criminal defendant. The constitutional concerns of Crawford are not implicated where the statement, as is the case here, is the defendant’s own statement. (People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25; see also Nazemian, supra, 948 F.2d at pp. 525-526 [if translated statement is properly viewed as that of the declarant, and not the interpreter, no confrontation clause issue is implicated because one cannot be denied the opportunity to confront oneself].) Therefore, the admission of defendant’s statement to the police did not violate defendant’s right of confrontation under Crawford.
DISPOSITION
The opinion filed on June 27, 2007, is vacated. On reconsideration as ordered by our Supreme Court, the judgment is affirmed.
WE CONCUR: Elia, J., McAdams, J.