Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. SF13275A. Richard J. Oberholzer, Judge.
Kelly Babineau, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury found defendant Jose Abelardo Rodriguez not guilty of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 1), but guilty of the lesser offense of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The jury also found defendant guilty of possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 2), possession of a firearm by a person previously convicted of a felony (Pen. Code, § 12021, subd. (a)(1); count 3), and possession of ammunition by a person previously convicted of a felony (Pen. Code, § 12316, subd. (b)(1); count 4). With respect to each count, the jury found true allegations that defendant was personally armed with a firearm in violation of Penal Code section 12022, subdivision (c). The trial court also found true allegations in each count that defendant had suffered four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), but granted defendant’s motion to strike two of the enhancements. The trial court sentenced defendant to a total prison term of six years, which included the upper term of four years on count 2.
On appeal, defendant contends that (1) the limitation of the cross-examination of one of the investigating officers (Officer Soto) violated his federal constitutional right to confront witnesses, and (2) the imposition of the upper term on count 2 violated his federal constitutional jury trial right, and that People v. Black (2007) 41 Cal.4th 799 (Black II), which he concedes supports the court’s sentencing decision, was wrongly decided. We affirm.
FACTS
On May 6, 2004, a number of officers participating in a narcotics task force conducted a search of defendant, a white Ford Explorer, and residence in Shafter. The search of the vehicle uncovered four bindles of methamphetamine, a “pay-and-owe” sheet, a glass pipe for smoking methamphetamine, a fully loaded, nine-millimeter Ruger handgun, and a Radio Shack scanner capable of picking up police radio frequencies.
The handgun and scanner were located by California Highway Patrol Officer Angel Soto underneath the right rear passenger seat. The other items were located contemporaneously by Kern County Sheriff’s Detective Hallum who was assigned to search the front of the vehicle while Officer Soto searched the back.
In his briefing on appeal, defendant erroneously states that Officer Soto found the glass methamphetamine pipe. The evidence at trial was that this particular item was discovered by Detective Hallum, not Officer Soto. The portion of the record defendant cites pertains to Officer Soto’s inspection of the pipe, not its discovery. Detective Hallum did not testify at trial. His role in the search and the evidence he uncovered were described by Officer Soto and Deputy Jackson.
The items discovered in the vehicle were received and processed by Kern County Sheriff’s Deputy Mark Jackson, who was the case agent responsible for overseeing the May 6 search. Deputy Jackson opined whomever possessed the four bindles of methamphetamine possessed them for the purpose of sales.
After receiving advisements pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant agreed to speak with Deputy Jackson. When asked about the gun found in the vehicle, defendant said he purchased it three months earlier from an unknown Hispanic male for $300. Defendant also admitted the methamphetamine belonged to him but claimed it was for his personal use.
DISCUSSION
I. Limitation of Cross-Examination
Defendant contends the court improperly limited cross-examination of Officer Soto regarding an incident involving a juror who had spoken to the officer in the hallway before the trial started and who was consequently dismissed from the panel and replaced with an alternate juror. According to defendant, the incident was not simply a collateral issue, as the trial court deemed, but was highly relevant to Officer Soto’s credibility, as the surrounding circumstances suggested that the officer lied about his familiarity with the juror and suggested he was attempting to curry favor with the jury. Defendant contends that, because Officer Soto was a key prosecution witness, the court’s limitation of examination on the matter pertaining to the officer’s credibility cannot be said to be harmless. We disagree.
“The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 (Van Arsdall). “[T]he right of confrontation [under the Sixth Amendment] includes the right to cross-examine adverse witnesses on matters reflecting on their credibility ….” (People v. Quartermain (1997) 16 Cal.4th 600, 623.) “‘However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation…. [U]nless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.’” (People v. Chatman (2006) 38 Cal.4th 344, 372.) “[T]he burden is on an appellant to affirmatively show in the record that error was committed by the trial court ….” (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.)
On the record here, we need not adjudicate defendant’s argument on the merits. Assuming arguendo that the trial court erroneously limited defendant’s right to confront witnesses against him, the error was harmless. The constitutionally improper denial of a defendant’s opportunity to cross-examine an adverse witness on matters reflecting on the witness’s credibility is subject to the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (Cf. Van Arsdall, supra, 475 U.S. at p. 684 [denial of opportunity to impeach prosecution witness for bias subject to harmless error analysis under Chapman].) “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt,” taking into consideration “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Van Arsdall, supra, 475 U.S. at p. 684.)
Officer Soto’s testimony regarding his discovery of the handgun and other items in the vehicle was unquestionably one of the cornerstones of the prosecution’s case against defendant. However, Officer Soto’s testimony was strongly corroborated by the testimony of Deputy Jackson who personally supervised the search and processed all the evidence discovered by Officer Soto and Detective Hallum. In light of this and defendant’s undisputed admissions to Deputy Jackson that the handgun and methamphetamine found in the vehicle belonged to him, we find any error in the trial court’s limitation of inquiry into the subject of Officer Soto’s pretrial conversation with a dismissed juror was harmless beyond a reasonable doubt.
II. Imposition of Upper Term
Relying on Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], defendant argues that imposition of the upper term on count 2 violated his federal constitutional jury trial right. We disagree.
The trial court relied on three aggravating factors when it selected the upper term: (1) defendant’s prior convictions were numerous; (2) his prior convictions all involved drug-related crimes; and (3) his prior performance on parole was unsatisfactory. These factors are supported by the probation officer’s report as well as the evidence the prosecution submitted to prove the prior prison term enhancements.
It is established that defendants do not have a right to jury trial for a sentence that is based on the fact of a prior conviction. (Almendarez-Torres v. United States (1998) 523 U.S. 224, 243, 246.) In Black II, our Supreme Court recently determined that the recidivism exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, supra, 41 Cal.4th at p. 819.) The judge may determine whether a defendant has suffered prior convictions and whether they are numerous or of increasing seriousness. (Id. at pp. 819-820.) In making these determinations, the judge may rely on the probation report. (Id. at pp. 818-819, fn. 7.)
Black II also held that the presence of one valid aggravating factor, such as a defendant’s criminal history, established in a constitutional manner renders a defendant eligible for the upper term sentence and that “any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.)
Defendant recognizes his recidivism rendered him constitutionally eligible for imposition of the upper term under the court’s reasoning in Black II. However, he argues that Black II was wrongly decided and that its understanding of the recidivism exception is overly broad. We are bound to follow the decisions of the California Supreme Court and reject his contention on that basis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HARRIS, Acting P.J., DAWSON, J.