P. v. Ceniceros

Filed 9/11/07 P. v. Ceniceros CA3

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Convicted of a number of residential burglaries (Pen. Code, 459), forgery of a check (Pen. Code, 470, subd. (d)), possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)), and misdemeanor elder theft (Pen. Code,  368, subd. (d)),^[1]defendant Johanna Ceniceros appeals her convictions and the sentence imposed. She contends the trial court erred in declaring a witness unavailable because of infirmity or illness and raises various claims of sentencing error.

On February 20, 2007, the United States Supreme Court, having granted a petition for writ of certiorari, vacated the judgment of this court and remanded the case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We directed the parties to submit supplemental letter briefs, discussing Cunningham issues only. Having further considered the case in light of Cunningham, the convictions are affirmed but the matter is remanded to the trial court for correction of sentencing errors.

STATEMENT OF CASE

Defendant was charged with committing seven residential burglaries (counts 1 through 7), forgery of a check (count 8), possession of methamphetamine (count 9), misdemeanor elder theft (counts 10 and 11), and misdemeanor forgery of a check (count 12). Each of the burglary charges also alleged the dwellings were occupied at the time of the crimes. ( 667.5, subd. (c)(21).) Counts 1 and 4 contained the additional enhancement allegation that the victims were vulnerable because of their age. ( 667.9, subd. (a).) It was further alleged defendant had a prior strike conviction ( 667, subd. (d)), a prior serious felony ( 667, subd. (a)(1)), and had served four prior prison terms ( 667.5, subd. (b)).

The trial court ruled on several in limine motions. The court granted a motion finding two prosecution witnesses were unavailable to testify at trial. (Evid. Code, 240, subd. (a)(3).) The court also granted the prosecutions motion to introduce the witnesses videotaped conditional examinations from the preliminary hearing in lieu of live testimony.

The jury found defendant guilty on counts 1 through 10 and count 12, and found her not guilty on count 11. The jury also found true all of the occupied dwelling enhancements and one of the vulnerable victim enhancements. The court found true the allegations defendant had a prior strike conviction, a prior serious felony conviction, and four prior prison terms.

Defendant was sentenced to an aggregate term of 36 years eight months in state prison. She was sentenced to 12 years on count 4 (the upper term of six years, doubled pursuant to 667 and 1170.12), plus a one-year enhancement for the elderly victim allegation. On each of the remaining burglary counts (counts 1, 2, 3, 5, 6, and 7), she received a consecutive two years eight months, as well as a consecutive one year four months on the check forgery and possession of methamphetamine counts (counts 8 and 9). On each misdemeanor count of elder theft and check forgery she received a concurrent one year county jail sentence. The court also imposed a five-year enhancement for the prior felony conviction and imposed, but then struck, a one-year sentence enhancement for three of the prior prison term allegations. The fourth prior prison term allegation was dismissed by the prosecution.

In supplemental briefing, defendant argued the upper term sentence imposed on count 4 violated the United States Supreme Courts decision in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Following the filing of those supplemental briefs, the California Supreme Court filed its opinion in People v. Black (2005) 35 Cal.4th 1238 (Black I), rejecting defendants position. (Id. at pp. 1263-1264.) Relying on Black I in our original opinion filed on December 19, 2005, we rejected defendants claim.

Defendant sought review in the California Supreme Court. That petition for review was denied without prejudice on March 1, 2006. On February 20, 2007, the United States Supreme Court granted defendants petition for writ of certiorari. The judgment was vacated and the case remanded to us for further reconsideration in light of Cunningham, supra, 166 L.Ed.2d 856. On March 13, 2007, we recalled our remittitur and reinstated the appeal.

Following the United States Supreme Courts decision in Cunningham,the California Supreme court reconsidered on remand its opinion in Black I. That opinion was filed on July 19, 2007. (People v. Black (2007) 41 Cal.4th 799 (Black II).)

STATEMENT OF FACTS

Count 1

Leanne Mueller, age 66, placed a classified advertisement in the newspaper to sell a Holiday Barbie doll. Defendant came to Muellers house in response to the ad and Mueller took her to her den to show defendant two dolls. Defendant liked the dolls and Mueller took her into a back bedroom to show her more dolls she was willing to sell. Mueller and defendant agreed upon a price, but defendant said she needed to talk to her husband about it first. She asked if she could go into the dining room and call her husband from there. Mueller agreed and stepped into the den to give defendant some privacy. Defendant came out of the dining room shortly thereafter and said she needed to go to the bank for the money. She did not return.

Mueller later went into the dining room and found her checkbook and wallet were missing. She had left them on the dining room table.

Counts 2 and 12

Paul Wyllie placed an ad in the newspaper to sell a water bed. Defendant came to his house to see it and, after looking at the bed, asked Wyllie if she could measure it to be sure it would fit in her room. Wyllie went to the garage to get a tape measure and left defendant alone near the living room. When he returned, defendant was standing at the table in the breakfast nook. They measured the bed, which defendant said was fine, but she stated she had to cash a check and would return for the bed. She never came back.

When Wyllies wife, Josephine Koster Wyllie, returned home, she found her wallet and checkbook were missing from her purse. She had left them on a chair near the table in the breakfast room. Mrs. Wyllie identified two of her missing checks, filled out by someone else. One of the checks was in the amount of $40 and had been used to buy a Mudd brand watch.

Counts 3 and 8

Thea Jane Rasmussen placed an ad in the paper to sell an electric scooter. Defendant came to Rasmussens house; the scooter was outside near the front door. Defendant agreed to Rasmussens asking price and asked if she could use Rasmussens telephone to call her husband. Rasmussen agreed and defendant went into her kitchen. Defendant got off the telephone and wrote Rasmussen a check. She then asked to use the bathroom. Rasmussen then told defendant she wanted cash instead of a check. Defendant agreed, but indicated she would have to go to the bank first.

Defendant then told Rasmussen she had just seen a man running by the patio door and suggested Rasmussen check it out. Rasmussen left defendant in the kitchen and went to the patio but did not see anyone. Rasmussen returned and defendant left the house, saying she would be back later with the cash. She did not return.

After defendant left, Rasmussen looked in her purse, which she had left on a chair under the kitchen table, and found her wallet and checkbook were missing. The check defendant had written for the scooter was from the account of Josephine Koster and signed in Kosters name.

Counts 4 and 10

Lola Davis lived in an apartment building for senior citizens and handicapped people. In November 2001, when Davis was 74 years old, defendant came to her apartment, claiming she was giving out blankets for the winter. Davis invited defendant into the apartment and defendant asked to use the restroom. Defendant told Davis she could not turn off the cold water faucet. Davis went into the bathroom and defendant went back to the living room. Davis found nothing wrong with the faucet and returned to defendant in the living room. Defendant told Davis she would go get a quilt for her and left the apartment. She did not return.

Later, Davis discovered her wallet was missing. It had been lying on a chair in the living room.

Count 5

Guadalupe Aguilar lived in the same apartment building as Davis. A woman called Aguilar on the apartment intercom, claiming she was from a service and was there to assist her. Aguilar let her in the building. Aguilar was outside her apartment, waiting for transportation service for her husband. She told defendant to go inside and wait for her. The transportation service then told Aguilar it could not pick up her husband that day and defendant offered to give him a ride. She claimed she had to see another client but would return later. She did not return that day.

About one week later, defendant came back. As defendant came down the hallway, Aguilar opened the front door slightly, but was suspicious of defendant. Defendant told Aguilar she was there to distribute blankets. Aguilars telephone rang; it was the building manager, who told Aguilar not to let defendant into her apartment. But when Aguilar went to answer the phone, defendant followed her inside. While on the phone, Aguilar saw defendant reach inside Aguilars purse in the living room. Aguilar screamed at her, and defendant left without taking anything.

Count 6

Georgia Graves placed an ad in the newspaper to sell an antique dresser. Defendant came to her house in response to the ad. When Graves showed her the dresser, defendant indicated she wanted to buy it and asked if anything else was for sale. Graves showed her a piano in the garage, which defendant indicated she wanted to buy as well. Defendant came back into the house with Graves and stated she wanted to call her husband. She walked over to a bar area and Graves went to the family room to give defendant some privacy. When Graves returned, defendant indicated her husband had approved the purchases, but she had to leave to get some money. She never returned.

Later, Graves got her purse, which had been on the floor in the bar area, and noticed her wallet was missing. She subsequently received a call that her wallet had been found, but her credit cards were missing and unauthorized charges had been made to the accounts.

Counts 7 and 12

Cary Fopiano placed an ad in the paper to sell a Mudd brand watch. Defendant came to Fopianos house in response to the ad. Fopiano and defendant went into the kitchen through the garage and Fopiano showed her the watch. Defendant asked if she could use Fopianos telephone and Fopiano agreed. Defendant asked if she could write a check for the watch and Fopiano again agreed. Defendant wrote the check for $40 dollars and signed the name of Josephine Koster.

Count 9

Defendant was contacted during the investigation into the burglaries and her residence was searched. In the bedroom, there was a purse containing 0.29 gram of methamphetamine.

DISCUSSION

I

Defendant contends the trial court erred by granting the Peoples motion finding Aguilar unavailable and allowing her previously recorded conditional examination to be used in lieu of her testimony at trial under Evidence Code section 240, subdivision (a)(3). We disagree.

The People had the burden of establishing by a preponderance of the evidence that Aguilar was currently unavailable because of medical infirmity. (People v. Stritzinger (1983) 34 Cal.3d 505, 516; People v. Williams (1979) 93 Cal.App.3d 40, 51.)

We traditionally review findings of fact under a deferential standard of substantial evidence, and findings of law under a de novo standard. (People v. Cromer (2001) 24 Cal.4th 889, 893-894 [103 Cal.Rptr.2d 23, 15 P.3d 243] [(Cromer)].) Mixed questions of law and fact, such as whether a given factual basis . . . is adequate . . . may be subject to deferential or de novo review. (Cromer, at p. 894.) (People v. Holmes (2004) 32 Cal.4th 432, 442 [9 Cal.Rptr.3d 678, 84 P.3d 366].) [] In Cromer, the question was whether the prosecution had proven due diligence in locating a missing witness whose preliminary hearing testimony was read to the jury pursuant to Evidence Code section 240(a)(5). Cromer held the standard of review was de novo (independent) and disapproved People v. Turner (1990) 219 Cal.App.3d 1207 [268 Cal.Rptr. 686] to the extent it contain[ed] language inconsistent with this conclusion . . . . (Cromer, supra, 24 Cal.4th at p. 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243].) Turner applied an abuse of discretion standard in reviewing whether the trial court properly found the witness to be unavailable under subdivisions (a)(3) and (c) of Evidence Code section 240, which are the same subdivisions at issue here. (Turner, supra, at pp. 1212-1214.) (People v. Winslow (2004) 123 Cal.App.4th 464, 470-471.)

We conclude substantial evidence supports the trial courts factual finding that Aguilar was unable to attend or testify at the trial because of a then existing physical illness or infirmity.

Pursuant to sections 1337 and 1339, on May 16, 2002, the People filed motions to allow Aguilars preliminary hearing testimony to be videotaped as a conditional examination, to preserve her testimony should she become unavailable at the time of trial. To permit the conditional examination, the court had to be satisfied that Aguilar was so sick or infirm as to afford reasonable grounds for apprehending that . . . she will not be able to attend the trial. ( 1337, subd. (4).)^[2] Supporting this finding was a letter by Dr. Steven Wall, Aguilars treating physician, who stated she had diabetes, coronary artery disease and hypertension, as well as having had several strokes. Because of her rather frail health, testifying twice in court would be very difficult. In addition, when the patient has increased stress, she has a difficult time in speaking, and communicating effectively because of her stroke.

At the preliminary hearing on May 21, 2002, Aguilar testified about her health. She indicated she had had quadruple bypass surgery in 1994 and had suffered a stroke in May 2001. She also had had her fourth angioplasty in August 2001. Aguilar testified she had diabetes. She noted that stress makes things more difficult for her and that her mini-strokes are going to continue to come until I get an aneurism or until I have a heart attack. The transcript also suggests there was difficulty with Aguilars speech, which worsened under stress. Aguilar was 63 years old at the time she testified.

On February 13, 2003, the People moved to admit Aguilars preliminary hearing testimony because she was currently unavailable as a result of her medical conditions. In support of this motion, they introduced another letter from Dr. Wall, dated October 23, 2002. In this letter, Dr. Wall stated Aguilar remains under my care for hypertension, coronary artery disease, and a stroke. Her health has actually deteriorated since May of this year. Again, because of her poor health, I would request that her video taped testimony be submitted, rather than subjecting her to the stress of having to testify in court. Increased stress would make communication very difficult for her because of her stroke, and also would be a threat to her health.

Defense counsel argued that this letter did not establish what Aguilars current condition was.^[3]The court asked counsel, So youre anticipating then that she may have rallied in her health sufficiently over these months that she could now appear in court? Upon counsels admission that he had no evidence of any improvement, the court noted, Shes obviously gotten now to be another four months older. In 120 days its hard to believe that her health has rallied after yet another series of strokes. Accordingly, having reviewed Dr. Walls letter of October 23, 2002, having reviewed the factors considered at the time of her [previous] testimony, and based on the provisions of Evidence Code section 240, the court found Aguilar was unavailable as a witness in that she is unable to attend or testify at the hearing because of a presently existing physical or mental illness or infirmity.

For a witness to be found unavailable under Evidence Code section 240, subdivision (a)(3), the illness or infirmity must be of comparative severity; it must exist to such a degree as to render the witnesss attendance, or his testifying, relatively impossible and not merely inconvenient. However, we cannot say just what illness or infirmity must be shown or the degree of its severity, leaving that determination to a trial courts exercise of discretion. (People v. Gomez (1972) 26 Cal.App.3d 225, 230.)

Defendant cites no authority, nor has our research revealed any, that indicates how current a medical report or opinion must be to support a finding of current unavailability. Here, the evidence demonstrated Aguilars health had deteriorated between May and October and that she suffered from chronic conditions such as diabetes and heart disease. Based on the nature of her conditions and the evidence in the record, it was reasonable for the court to infer that in the time between October and February, Aguilars health continued to deteriorate.

The evidence also showed Aguilar was 64 years old and had a number of serious health issues, including diabetes, multiple strokes, and coronary artery disease. Her communication skills had been impacted and that impact was worsened by stressful circumstances. The stress of testifying again would negatively impact Aguilars ability to communicate and would pose a threat to her health. Aguilars illnesses were of sufficient severity that her testifying was not merely inconvenient. A trial court is not compelled to seriously jeopardize the health of a witness, particularly in circumstances where all parties knew in advance of the trial that health issues rendered her unavailability for trial a real possibility and the court took steps to ensure the testimony would be preserved and taken with protections and considerations of trial testimony.^[4]

II

Defendant next contends the imposition of sentence on count 12, the forgery to pay Fopiano for the Mudd watch, must be stayed under section 654. She contends she cannot be punished for both the burglary and the underlying felony.

Defendant did not raise a section 654 issue at sentencing with regard to the count 12 forgery, so we do not have the benefit of a factual finding by the trial judge that section 654 does not apply and permits the concurrent one-year sentence. But [o]n a silent record, a reviewing court will presume that the trial court considered and rejected the notion that a particular sentence violated section 654. (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 6th ed. 2002) 37.50, p. 1058.)

If defendant harbored a single intent, multiple punishment is prohibited; if she harbored multiple criminal objectives, which were independent of and not merely incidental to each other, [s]he may be punished for each statutory violation committed in pursuit of each objective, . . . (People v. Harrison (1989) 48 Cal.3d 321, 335.) The question of whether defendant entertained multiple criminal objectives is a factual one for the trial court, which is invested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) The courts express or implied findings thereon will be upheld on appeal if supported by substantial evidence. (Ibid.) We review the evidence in the light most favorable to the People and presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)

Here, as the People point out, defendants method of committing the burglaries was remarkably consistent. She would endeavor to gain entry into the home, usually in response to an ad in the paper seeking to sell something. Once she was in the house, she would get the homeowner to leave her alone in a room with the homeowners purse and would then take the checkbook and/or wallet from the purse. Usually, she accomplished this privacy by asking to make a phone call. She would then leave the house, indicating she had to get some cash and come back, but would not return.

Defendants method was the same in the Fopiano burglary. She responded to an ad in the paper and gained entry to Fopianos house. She asked if she could use Fopianos phone and Fopiano agreed. However, unlike the other victims, Fopiano did not leave defendant alone in her home. Unable to steal Fopianos wallet, defendant went ahead and wrote a check for the Mudd watch. However, the forgery of the check to buy the Mudd watch was a separate criminal objective from that of the burglary of Fopianos home to steal her wallet. Accordingly, the court did not err in imposing separate sentences on both the burglary and forgery counts.

III

Defendant next contends the imposition of sentence on count 10, elder theft, must be stayed under section 654 as she cannot be punished for both the burglary and the underlying felony. The People properly concede this argument.

IV

Defendant also argues with respect to count 10 that the court could not impose both the elderly victim enhancement under section 667.9 and punishment for elder theft. However, we have already agreed with defendant that the sentence on count 10 should be stayed. By staying the sentence for count 10, elder theft, there is no longer an obstacle to adding a one-year elderly victim enhancement to defendants burglary sentence.

V

Defendant notes, and the People agree, that there are errors in both the abstract of judgment and the minute order that require correction. Specifically, the abstract of judgment and the minute order indicate defendant was sentenced to 365 days in county jail on count 11. In fact, defendant was found not guilty on count 11. Defendant was sentenced to 365 days in county jail on count 12.

VI

At sentencing, the trial court based its imposition of the upper term on count 4 on the following factors: the victim was particularly vulnerable, the crime was carried out with some planning and professionalism, defendant was on parole at the time she committed the offenses, and her performance on parole was unsatisfactory. Defendant contends that since none of the factors relied upon were the simple fact of a prior conviction, the trial courts judicial fact finding violated her Sixth Amendment right to a trial by jury. We disagree.

The Sixth Amendment requirement of a jury trial and proof beyond a reasonable doubt applies only to any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone [citation]. (Black II, supra, 41 Cal.4th at p. 812.)

The issue to be determined in each case is whether the trial courts fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed. (Black II, supra, 41 Cal.4th at p. 815.)

Under Cunningham, the courts findings regarding aggravating circumstances serve two analytically distinct functions . . . . One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial courts exercise of its discretion in selecting the appropriate term from among those authorized for the defendants offense. (Black II, supra, 41 Cal.4th at pp. 815-816.)

Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728, 55 Cal.Rptr.2d 26, 919 P.2d 640.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black II, supra, 41 Cal.4th at p. 813.)

The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] (Black II, supra, 41 Cal.4th at p. 818.) The California Supreme Court, and numerous other jurisdictions, have interpreted the Almendarez-Torres^[[5]] exception to include 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. [Citations.] (Black II, at p. 819; see also cases cited in People v.McGee (2006) 38 Cal.4th 682, 703-706.)

Defendants parole status necessarily arises from a prior conviction and relates to the fact of that prior conviction. The factors related to defendants parole status and performance on parole can be determined by judicial review of court records pertaining to defendants prior convictions, sentences, and paroles. (Apprendi v. New Jersey (2000) 530 U.S. 466, 488 [147 L.Ed.2d 435] (Apprendi).) As with the number and increasing seriousness of a defendants convictions, whether defendant was on parole at the time of the offense and defendants performance on parole are the types of determination more typically and appropriately undertaken by a court. [Citation.] (Black II, supra, 41 Cal.4th at p. 820.) Therefore, the fact that defendant was on parole at the time of the offense and defendants performance on parole are recidivism factors arising from the fact of a prior conviction upon which the trial court may rely to impose the upper term.^[6] (Cf. U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the prior conviction exception extends to subsidiary findings such as whether a defendant was under court supervision when he or she committed a subsequent crime].)

In this case, there were two recidivism-related aggravating circumstances established in accordance with Blakely -- that defendant was on parole when she committed the offenses and that her performance on parole was unsatisfactory.

On March 14, 1995, defendant was placed on parole. She was arrested again on July 21, 1995. She was found in violation of parole and received a new prison term on September 1, 1995. She was paroled again on June 16, 1998. On October 10, 1998, defendants parole was revoked and she was arrested two days later. On December 28, 1998, she was found in violation of parole and received a new prison term. She was again paroled on November 15, 2000. On December 18, 2000, she was returned to prison for further proceedings. She was found in violation of parole and returned to custody for 365 days on December 21, 2000. On June 25, 2001, she was paroled. She was arrested on April 26, 2002. Parole was revoked on May 20, 2002, and she was returned to custody for 12 months. The current spate of crimes was committed during that last release on parole, between November 1, 2001, and April 26, 2002.

From March 1995 to December 2000 defendant was released on parole three times. During those releases, she did not last more than four months without committing additional offenses that led to her arrest and the revocation of parole. Her most recent parole in 2001 lasted 10 months. However, this longevity was apparently only because she was not apprehended committing her crimes until April 2002. In fact, she started committing crimes again within five months of her most recent release on parole. The examination of the dates and periods of parole amply demonstrates both that defendant was on parole at the time she committed these offenses and that her performance on parole was unsatisfactory.

The aggravating circumstances related to defendants recidivism were established consistent with Sixth Amendment principles. Accordingly, the maximum sentence that could have been imposed in this case was the upper term, and the court was permitted to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments. [Citation.] (Black II, supra, 41 Cal.4th at p. 813.)

The court's factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional. (Black II, supra, 41 Cal.4th at p. 815.)

Based on defendants criminal history, established in accordance with Apprendi and its progeny, the upper term was the statutory maximum to which she was exposed. The courts consideration of additional aggravating circumstances, such as the vulnerability of her victims and her planning and professionalism in carrying out her crimes, did not exceed the authorized sentence. Rather, they were appropriate considerations in the exercise of the courts sentencing discretion.

DISPOSITION

The convictions are affirmed. The matter is remanded to the trial court to stay the sentence imposed on count 10. The trial court is also directed to correct the minute order and abstract of judgment to reflect imposition of sentence on count 12 rather than count 11. The trial court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

RAYE , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] We believe this is most likely what the trial court was referring to when it indicated the court had previously found Aguilar to be unavailable in May 2002.

^[3]On appeal, defendant argues this letter was not evidence as it was hearsay. However, defendant did not raise this objection in the trial court; therefore, it is forfeited. (See People v. Ramos (1997) 15 Cal.4th 1133, 1178; People v. Wheeler (1992) 4 Cal.4th at 284, 290.) Material and relevant evidence that is technically . . . inadmissible under the exclusionary rules, if offered and received without a proper objection or motion to strike, will be considered in support of the judgment. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial,  393, p. 484.)

^[4]In granting the motion for a conditional examination, the court expressly stated: I want it to be clear that this testimonys going to be taken as if it was going to be testimony at trial, so that objections that might be appropriate at a preliminary hearing that commonly are heard, unless they were also objections appropriate at trial. The Courts going to . . . overrule those objections.

^[5]Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350.]

^[6] We note this precise issue is currently pending before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.