P. v. Flores

Filed 10/26/07 P. v. Flores CA2/4

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Affirmed as Modified.

Robert L.S. Angres, under appointment by the Court of Appeal for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Herbert S. Tetef, Lance E. Winters and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

Richard Flores appealed from a judgment entered following a jury trial in which he was convicted of first degree burglary (Pen. Code,  459) with the finding within the meaning of Penal Code section 667.5, subdivision (c) that another person, other than an accomplice, was present in the residence during the commission of the offense. He admitted he had suffered a prior conviction for a serious or violent felony within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i), and 667, subdivision (a)(1) and two prior convictions within the meaning of Penal Code section 667.5, subdivision (b). Sentenced to prison for 17 years, he contended the trial court committed prejudicial error when it allowed his supposed confession to be read into evidence. Additionally, he claimed that imposition of an upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296 and his federal constitutional rights to a jury trial under the Sixth Amendment to the United States Constitution and due process pursuant to the Fourteenth Amendment, and that he was entitled to an additional day of pre-sentence custody credit. On August 24, 2006, we issued an opinion modifying appellants pre-sentence custody credits and in all other respects affirmed the judgment.

Appellant thereafter filed a petition for writ of certiorari in the United States Supreme Court. While the petition was pending, that court decided Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and later granted appellants certiorari petition, vacated our judgment, and remanded the matter to us for further consideration in light of Cunningham. We recalled the remittitur, vacated the opinion, and granted the parties leave to file supplemental briefs addressing the effect, if any, of Cunningham on appellants sentence. While the case was pending, the California Supreme Court considered Cunningham issues in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. We afforded the parties additional time to address those opinions. After review of Cunningham, Black, Sandoval, and the parties supplemental briefs, we conclude appellants sentence did not violate his right to a jury trial and was not improper under Blakely. As we did in our original opinion, we modify appellants presentence custody credits and in all other respects affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On August 19, 2004, at approximately 2:00 p.m., Manuel Ortiz drove to his home on West 21st Street in the City of San Pedro and opened the door to his attached garage using a remote control. After driving into the garage, he closed the garage door and entered his home through another door. When he was inside his residence, he heard the garage door open and ran downstairs to investigate. His garage door was open, and a man who was nearby said he saw a man run out.

Mr. Ortizs neighbor, Dennis Andries, was outside cutting his hedge and saw appellant walking down an alley adjacent to Mr. Ortizs residence. Mr. Andries said hello and appellant said hello back. Approximately four minutes later, appellant walked by again; this time he had a bag, and a cord was sticking out of the back of the bag. As appellant walked across the street, he put the cord back in the bag. He then ran in between some apartments into the next street. Mr. Andries figured something was up, walked down the alley, and noticed Mr. Ortizs garage was open. He asked Mr. Ortiz if anything from his garage was missing, and Mr. Ortiz said. yes. Mr. Andries told him he had just seen a kid running down the alley [and it] looked like he had something in his bag. Mr. Andries drove Mr. Ortiz to an adjacent street looking for appellant. When they found him, Mr. Ortiz said, I think you got my tools in your bag; appellant turned around and ran. Appellant ran into a bar and then out the back door of the bar into an alley, still carrying the tools. He eventually got away.

Los Angeles Police Officer George Lewis spoke with Mr. Andries concerning the residential burglary, and Mr. Andries identified appellant from a six-pack photo lineup. He was very confident of the identification.[1] Officer Lewis thereafter spoke to appellant following waiver of his Miranda rights[2]and asked appellant where the tools were that were stolen in the burglary. Appellant said that he sold them to some workers who were working on a house in an alley. Officer Lewis wrote down what appellant said and appellant signed it. Appellant never said he broke into the garage. Officer Lewis indicated he had a little bit of difficult time remembering what was said and that it would refresh [his] memory to look at part of a narrative statement that [he] put together in one of [his] reports. After reading the statement to himself, Officer Lewis said that the written statement really did not refresh his memory about what appellant said concerning his involvement in the burglary. Officer Lewis testified that he wrote the statement down but he could not remember exactly what he or appellant said during the interview. Officer Lewis testified he had prepared the report at or near the time of the interview with appellant and put down in his report what took place. Over appellants objection that it was improper, the court allowed Officer Lewis to read the statement he wrote, which was, Defendant was transported to Harbor Station where we advised him of his Miranda rights. Defendant waived his rights and provided written statement in which he admitted to taking victim Ortiz tools from his garage and selling them to construction worker at 455 West 19th Street. Defendant provided me with directions to the house where he sold the tools. Defendant denied any implication in any other crimes. Officer Lewis went to that location and recovered Mr. Ortizs tools. The statement Officer Lewis read was made when he interviewed appellant at the station on the day of his arrest.

DISCUSSION

I

Appellant contends that [b]ecause the detective wrote out appellants August 19 statement on August 25, the trial court should have sustained defense counsels objection and precluded the detective from reading appellants confession into the record. Appellant argues the cross-examination of Officer Lewis revealed that he did not write down the confession by appellant that took place on August 19 until six days afterwards. It was this follow-up report that was subsequently read into evidence, and the writing therefore was not made at the time when the statement was given within the meaning of Evidence Code section 1237, subdivision (a)(1).

Respondent observes that appellant was arrested on August 24, not August 19, and that the factual premise of appellants argument is wrong. In his reply brief, appellate counsel agrees appellant was not arrested until August 24 and apologizes to the court for the error. Appellant argues, however, that the delay of even one day between the time appellant confessed and the time the detective wrote out the statement precluded reading the admission into evidence.

Evidence Code section 1237 provides: (a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness memory; [] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness statement at the time it was made; [] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and [] (4) Is offered after the writing is authenticated as an accurate record of the statement. [] (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

A trial courts determination that evidence is admissible as an exception to the hearsay rule will not be disturbed on appeal absent a finding by the reviewing court that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) Officer Lewis testified that he personally wrote the statement on August 25, one day after his interview with appellant, and that the report accurately recorded appellants admission. He testified he put down in [his] report what took place. As the statement was admissible as an admission of appellant pursuant to Evidence Code section 1220 and Officer Lewis had insufficient present recollection to enable him to testify fully and accurately regarding the substance of the admission, the trial court did not abuse its discretion when it determined the elements of Evidence Code section 1237 had been met. (See People v. Miller (1996) 46 Cal.App.4th 412, 422-423, disapproved on other grounds in People v. Cortez (1998) 18 Cal.4th 1223, 1240.)[3]

II

In selecting the upper term of six years[4], the trial court observed that appellants record dated from 1990 and included numerous convictions, incarcerations and violations of parole, including the instant offense. Noting that appellants record was as bad as it gets with respect to the fact that he just refuses to stop committing crimes, the court found no factors in mitigation and a plethora of factors in aggravation, namely, multiple convictions.

Appellant claims imposition of an upper term sentence violated Blakely v. Washington, supra, 542 U.S. 296 and his federal constitutional rights to a jury trial under the Sixth Amendment and to due process under the Fourteenth Amendment.

In Cunningham v. California, supra, 549 U.S. ___, ___ [127 S.Ct. 856], the United States Supreme Court concluded Californias determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and the Sixth Amendment to the United States Constitution. It also, however, reiterated that the fact of a prior conviction need not be submitted to a jury. (See Cunningham v. California, supra, 549 U.S. ___; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) 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.] (People v. Black, supra, 41 Cal.4th at p. 818.) The prior conviction exception to the Apprendi rule has been construed broadly to apply to factors based on a defendants recidivism. (See People v. Black, supra, 41 Cal.4th 799, 819; People v. McGee (2006) 38 Cal.4th 682, 704; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.) Here, the trial courts reliance on appellants criminal history, including his multiple convictions, permitted the upper term sentence. Use of that factor did not violate his right to a trial by jury or proof of the fact beyond a reasonable doubt. [T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements. (People v. Sandoval, supra, 41Cal.4th at p. 838; see also People v. Black, supra, 41 Cal.4th at p. 813.)

III

Appellant claims he is entitled to 315 days, not 314 days, of pre-sentence credits. Respondent agrees. Appellant was arrested on August 24, 2004 and sentenced May 24, 2005. He was entitled to and received 274 days of actual custody credit. Pursuant to Penal Code section 2933.1, his local conduct credit was limited to 15 percent of his actual custody credit. Fifteen percent of 274 is 41.1. Thus, appellant is entitled to 41 days of local conduct credit instead of the 40 days the trial court awarded him, and to a total of 315 days of presentence credit.

DISPOSITION

The judgment is modified to award appellant 41 days of local conduct credit and a total of 315 days of presentence credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P.J.

SUZUKAWA, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

[1] Initially at trial, Mr. Andries testified appellant did not look like the guy at all and that it had been a long time. He acknowledged that when he looked at the photo six-pack it was a lot closer in time to the event and that the individual he had selected was totally the guy, one hundred percent. Thereafter, he was recalled to the stand and testified that as he left the stand he saw appellants profile and got a better look at his face and that appellant was definitely the man that [they] were chasing.

[2]Miranda v. Arizona (1966) 384 U.S. 436.

[3] While respondent asserts appellant forfeited his claim by failing to make a timely and specific objection, the trial court correctly informed the parties the evidence was admissible as a past recollection recorded and the problems associated with the failure to make a specific objection did not occur. (Cf. People v. Partida (2005) 37 Cal.4th 428, 433-435.)

[4] The term was doubled to 12 years pursuant to the Three Strikes law (Pen. Code,  1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and a consecutive term of five years was imposed pursuant to the provisions of Penal Code section 667, subdivision (a)(1).