P. v. Garcia

Filed 8/21/07 P. v. Garcia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Raymond Edwards, Jr., Judge. Judgment affirmed.

I.

INTRODUCTION

Defendant David Garcia appeals from a judgment of conviction and sentence. A jury convicted Garcia of two counts of robbery and found true the allegation that Garcia reasonably should have known that the victim of one of the robberies was 65 years of age or older. After the jury found him guilty, Garcia admitted to having suffered a prison prior, a serious felony prior, and a strike prior.

Garcia challenges his convictions on four grounds and his sentence on one ground. Garcia first contends that the trial court erred in denying his motion to suppress certain evidence. According to Garcia, police officers violated his Fourth Amendment right against unreasonable search and seizure in entering his codefendant's home without a warrant, when there existed no exigent circumstances and there was no need for a protective sweep of the residence. Garcia also contends that the trial court erred in denying his pretrial motion to sever his trial from that of his codefendant after Garcia's codefendant provided testimony that might have exonerated Garcia.

Garcia further asserts that he was denied the effective assistance of counsel when his attorney failed to call this codefendant as a witness at trial. Garcia also challenges his conviction on the basis that the trial court should have granted his motion for a mistrial because the jury heard testimony that Garcia was on parole at the time of the offense. Finally, Garcia challenges his sentence, asserting that the trial court relied on facts that were neither found by the jury nor admitted by Garcia to impose the upper term.

We conclude that Garcia's challenges to his conviction are without merit. Further, under recent Supreme Court precedent, the trial court did not violate Garcia's right to a jury trial when it imposed the upper term. The conviction and sentence are therefore affirmed.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background

Garcia and codefendant German Rojo^[1]were charged by amended information with two counts of robbery (Pen. Code,^[2] 211). With respect to the first robbery count, the information alleged that Garcia knew or should have known that the victim was at least 65 years of age ( 667.9, subd. (a)). The information also alleged that Garcia had suffered a prison prior ( 667.5, subd. (b), 668), a serious felony conviction ( 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a prior strike conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12.

Garcia and Rojo moved to suppress evidence on the ground that police officers initially entered Rojo's house in violation of the defendants' Fourth Amendment rights, and then used the existence of evidence found during the initial sweep to obtain a warrant to search the house a second time. The trial court heard the motion on March 20, 2006, and denied it.

On March 28, a jury found Garcia guilty of both robbery counts and found true the allegation that Garcia reasonably should have known that one of the robbery victims was 65 years of age or older. Garcia waived jury trial on the prior conviction

allegations, and admitted that he had suffered a prior prison term conviction, a prior serious felony conviction, and a prior strike conviction.

On May 23, 2006, the trial court heard and denied Garcia's motion for a new trial and his motion to strike the prior strike conviction. Immediately thereafter, the trial court sentenced Garcia to an aggregate term of 16 years in state prison. The sentence included the upper term of five years on count 1, doubled to 10 years as a result of Garcia's prior strike conviction, a term of five years, consecutive, for the prior serious felony conviction, and an additional year, consecutive, based on the finding that Garcia should have known that the victim was at least 65 years old. As to count 2, the trial court imposed a six-year term, which was one-third of the midterm, doubled, to be served concurrently with the sentence on count 1.

Garcia filed a timely notice of appeal on May 24, 2006.

B. Factual background

1. The first robbery

At approximately 6:00 a.m. on August 26, 2005, Charles Chilton, who was 68 years old, was grabbed from behind while he was out for his morning walk on Third Avenue in Chula Vista. One man held Chilton from behind, yelling, "Give me your money," while two other men approached Chilton, holding knives. The men pushed Chilton to the ground. As one man held a knife to Chilton's throat and another held a knife to Chilton's arm, they were saying things such as, "Don't move," and "I'll cut you." Chilton could feel the knives against his neck and arm, and he could see that the knife that was being held to his arm was a "folding-type" knife.

As one of the men continued to hold Chilton face down, another man pulled items from Chilton's pockets, including a Nokia cell phone, an iPod, and a set of keys. The men then started to walk away from Chilton. As they did so, one of the men turned and looked back toward Chilton. Chilton later identified Rojo as that man.

After the three men left, Chilton immediately walked to a police station, which was approximately a block away from the location where the incident took place. Chilton gave a statement, and allowed the police to take photographs of his bruised and scratched hands and arms. Blood was dripping from a wound on one of Chilton's arms.

2. The second robbery

At approximately 7:30 a.m. that same morning, high school sophomore Erick El Belle was walking toward Vista Square Elementary School, near Fifth Avenue in Chula Vista, when he saw three men across the street. The three men crossed the street diagonally, heading directly toward El Belle. When the men reached El Belle, one of them pointed a knife at him and said, "Give me your money." The man held the knife, which was a switch blade type knife with a five or six-inch blade, approximately six inches from El Belle's neck. El Belle handed the man three $20 bills and eight $1 bills, which was all of the money he had with him that day. Another man asked, "Is that it?"

The men left El Belle and began walking toward the Chula Vista Mall. El Belle entered the elementary school and reported the incident to a school administrator, who called police. El Belle spoke with Chula Vista Police Officer Robert Murgia about the incident.

3. The police investigation

Just after he started his shift at approximately 7:30 a.m. on August 26, 2005, Chula Vista Police Officer Sergio Martinez received a radio call reporting that three robbery suspects had taken a victim's money at knifepoint. The suspects were described as looking like gang members. Based on Officer Martinez's experience, he understood this to mean that the suspects had shaved heads, wore baggy clothing, and had visible tattoos. Prior to starting his shift, Officer Martinez and his partner, Officer William Rogers, were told that a robbery had just occurred near Third Avenue and F Street, and that the suspects in that robbery had also been described as looking like gang members.

Officers Martinez and Rogers drove around the area. As they drove south on the 400 block of Smith Avenue, they noticed two or three young men, who had shaved heads and were wearing baggy clothing, gathered approximately five to 10 feet from a porch near the side door of a house on the corner of Smith Avenue and Otis Street. The officers drove past the house and made a U-turn to approach the house again. When the officers returned to the house, the men were no longer near the front porch.

Officer Martinez walked to the door where the men had been standing and noticed blood drops on the porch. Although the drops were dry, they appeared to be fairly fresh because they were still quite red. Officer Martinez knocked on the door. Rojo answered the door and came outside. Two other individuals also came out of the house.

Rojo was wearing baggy jeans and no shirt. He was breathing heavily and his face was covered with sweat. He had a laceration on his inner left forearm that was open but not bleeding. Officer Martinez entered the home against Rojo's wishes, and without a warrant, conducted a protective sweep of the house. During the sweep, Officer Martinez noticed an iPod and a cell phone on a bed inside the house. Officer Martinez found Garcia in bed with Grisel Ochoa, a cousin of Rojo's. Martinez told both of them to get up and walk to the living room.

Officer Martinez testified that Ochoa told him that she did not know Garcia, and that he had crawled into her bed about five minutes before Martinez entered the room. Officer Robert Hinkledire testified that Ochoa had told him that she did not know Garcia, that he was not her boyfriend, and that he had gotten into bed with her that morning just prior to the time police entered the residence. At trial, Ochoa denied having made those statements. She testified that when the police officer entered her bedroom, Garcia was standing near the middle of the room talking with her. She also testified that she had taken Rojo to the hospital the previous night because he had cut his arm on a broken window.

Officer Martinez patted down Garcia to see whether he was carrying any weapons and removed a number of items from Garcia's pockets. Officer Martinez's report states that he found nothing illegal on Garcia, although he did remember finding "some money," including at least one $20 bill, in Garcia's pockets. Officer Rogers patted down Rojo and found a small plastic-handled folding knife. Chilton testified that the knife confiscated from Rojo looked similar to the knife that was held to his arm during the robbery.

Police officers brought Chilton and El Belle to the house for a curbside line-up. Chilton identified Garcia as one of the men who had robbed him, and was 60 percent certain that Rojo was also one of the robbers. He could not identify anyone else at the residence as having been involved in the robbery. El Belle identified Garcia and Rojo as being two of the men who had robbed him.

Approximately an hour or two after Officer Martinez originally entered the residence, Officer John Stires sought and obtained a warrant to search the home. Officers searched the home and found items they believed were related to the victims, including an iPod, a cell phone, and $26 in cashconsisting of a single $20 bill, a $5 bill, and a $1 bill. A few weeks after the robberies, officers asked Chilton to come to the police station to see whether he could identify some of the property that had been recovered from the Rojo house. Chilton identified a cell phone and iPod as belonging to him. The iPod's menu listed Chilton as the owner.

III.

DISCUSSION

A. The trial court did not err in denying Garcia's motion to suppress evidence

seized from Rojo's residence

1. Additional Background

Garcia and Rojo joined in a motion to suppress evidence from the Rojo house on the theory that officers made a number of observations inside the house prior to obtaining a warrant to search the house, and that these observations were made in the course of a search that was conducted in violation of the Fourth Amendment.

During a hearing on the motion on January 23, 2006, Officer Martinez testified that he entered the residence without a warrant despite Rojo's lack of consent because the blood drops on the porch caused him to be concerned that someone inside the home "was in need of our assistance or medical attention." He wanted to make sure that "there was nobody inside that was hurting, that may have been bleeding, caused this blood, these drops of blood here[,] that needed our help." Officer Martinez further testified that he was concerned that other people who were still inside the house might be armed, and that the reason he entered the house was to ensure his own safety.

Officer Stires testified that he participated in obtaining a search warrant for the Rojo residence. In his affidavit in support of the search warrant, Officer Stires included information that Chilton and El Belle had both identified Rojo as being involved in the robbery. The court entered copies of the affidavit and search warrant in evidence. Officer Stires testified that "part of what [he] used to establish probable cause in [his] affidavit was evidence that was located during the protective sweep of the residence."

The following day, the trial court denied the defendants' motion to suppress evidence found in the Rojo residence, concluding that the original warrantless entry was justified under the circumstances. The court determined that police officers held a reasonable belief that someone inside the house may have needed medical assistance, and that a "protective sweep" was necessary to ensure the officers' safety. The trial court also denied the motion to suppress on a separate groundi.e., that the evidence would have been inevitably discovered. The court concluded that even assuming the original search of the home was unlawful and that all of the observations officers made inside the home during that search should have been excluded from the affidavit supporting the request for a warrant, there was sufficient independent information in the affidavit that established probable cause to support the warrant, including the victims' identifications of Rojo and the proximity of the home to the locations where the robberies occurred.

In a separate pretrial motion, Garcia and Rojo later sought to traverse the search warrant and suppress the evidence pursuant to Franks v. Delaware (1978) 438 U.S. 154. The defendants asserted that the search warrant had been issued based on "misstatements" in the supporting affidavit. Specifically, they maintained that Officer Stires should not have included in the affidavit information based on observations officers made inside the Rojo residence during the warrantless search.

A different judge presided over the hearing on the motion to traverse the search warrant. That judge made the same finding the previous judge had made in denying the defendants' motion to suppress, i.e., that even if all of the observations officers made inside the Rojo home during the warrantless search were excised from the affidavit supporting the request for a search warrant, the affidavit contained sufficient independent information to support a finding of probable cause. The judge concluded, "So this motion to traverse and suppress is denied because the court finds that there is more than ample probable cause based upon the totality of the circumstances known to the officer absent the specific challenged language . . . ."

2. Analysis

Garcia contends that the trial court erred in denying his motion to suppress evidence found in the Rojo residence.^[3] Specifically, Garcia challenges the trial court's conclusion that the officers' warrantless entry into the home was justified as a "protective sweep" or because officers held a reasonable belief that someone inside the home may have needed aid. We need not address the question whether the initial search was justified on these grounds, however, because we must affirm the trial court's ruling denying Garcia's motion to suppress on two separate grounds.

First, although Garcia fails to articulate precisely what evidence from the house he believes the court should have suppressed, it appears that all of the evidence seized at the Rojo residence would have been inevitably discovered pursuant to the search warrant. "Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine 'is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.' [Citation.]" (People v. Robles (2000) 23 Cal.4th 789, 800.)

Approximately one to two hours after Officer Martinez conducted the initial search of the house, officers obtained a search warrant for the home. Pursuant to the search warrant, officers seized the iPod and cell phone that were found on a bed in one of the bedrooms in the house. Although officers included their observations of the iPod and cell phone made during the warrantless search of the Rojo residence in the affidavit supporting the request for a warrant, two different judges in two different pretrial hearings concluded that even if the statements about the evidence officers observed inside the house was excised from the supporting affidavit, the affidavit still provided probable cause to justify the search warrant. Because probable cause for a warrant existed without the officer's observations of evidence they saw inside the home during their initial entry, a search pursuant to a warrant would have inevitably led to the discovery of the evidence seized from the Rojo home, including the iPod, cellular phone, and even Garcia himself.

Second, we must affirm the trial court's decision to deny Garcia's motion to suppress because Garcia failed to establish that his own Fourth Amendment rights were violated by the warrantless search of the home and the introduction of evidence seized from the home.^[4] Specifically, the evidence in the record does not demonstrate that Garcia had a reasonable expectation of privacy in his codefendant's residence. Generally, "an illegal search only violates the rights of those who have a legitimate expectation of privacy" in the place searched or in the property seized. (United States v. Salvucci (1980) 448 U.S. 83, 91-92.) "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of athird person's premises or property has not had any of his Fourth Amendment rights infringed." (Rakas v. Illinois (1978) 439 U.S. 128, 134, italics added (Rakas).)

In order to successfully suppress evidence on Fourth Amendment grounds, a defendant must establish that his Fourth Amendment rights were infringed by the illegal search or seizure. The defendant "has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized." (People v. Jenkins (2000) 22 Cal.4th 900, 972, citing Rakas, supra, 439 U.S. at pp. 130-131, fn. 1, 134.) To meet this burden, a defendant must demonstrate "that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one which has 'a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.' [Citation.]" (Minnesota v. Carter (1998) 525 U.S. 83, 88.)

It was thus incumbent on Garcia to establish that he had a reasonable expectation of privacy in a house that was admittedly not his residence. He failed to meet this burden. Garcia offered no evidence establishing that he had a privacy interest in the home and the evidence in the record establishes that Garcia was, at most, a casual guest in the Rojo home at the time the warrantless search took place.

Garcia asserts, "We know from the record codefendant Rojo asserted his right to privacy and the privacy rights of his houseguests who were inside the residence when he refused to the consent to the officers' entry into the residence." He further claims, without citation to authority, that "Rojo's guests, including appellant, were entitled to a legitimate expectation of privacy inside their host's home." We disagree with these assertions. Obviously, Rojo can assert only his own right to privacy, since Fourth Amendment rights are personal and may not be asserted vicariously. (See Rakas, supra, 439 U.S. at pp. 130-131.)

The mere fact that Garcia was present in the Rojo house at the time it was searched is not enough to establish that he had a reasonable expectation of privacy in the home. "While an ownership or possessory interest in the searched premises is not necessarily required to assert a reasonable expectation of privacy under the Fourth Amendment, the mere legitimate presence there by invitation or otherwise, without more, is insufficient to create a protectable expectation." (People v. Koury (1989) 214 Cal.App.3d 676, 686 (Koury), citing Rakas, supra, 439 U.S. at pp. 142-143.) Rather, courts "generally have concluded that a person lawfully present on the premises has standing[^[5]] [only] when he or she is more than a 'casual visitor.' [Citation.]" (Koury, supra, 214 Cal.App.3d at pp. 687-688.) In determining whether a particular defendant is more than a "casual visitor," courts examine a number of factors, including "'"whether the defendant has a [property or] possessory interest in the thing seized or the place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion; whether he took normal precautions to maintain his privacy; and whether he was legitimately on the premises."' [Citations.]" (People v. Moreno (1992) 2 Cal.App.4th 577, 584, fn. 3.)

To bolster his claim that he was more than a "casual visitor" at the Rojo home on the morning of the search, Garcia cites to evidence that he was found lying in a bed inside the home, and that "Rojo and [Rojo's] guests had been drinking together for most or all of the night inside the Rojo residence." He contends that "[t]here is no evidence to indicate that appellant was a 'casual visitor' in the Rojo residence." Garcia claims that his "status as a houseguest" in the Rojo home that night conferred on him a reasonable expectation of privacy inside the Rojo home.

The record does not support Garcia's contentions. The mere fact that Garcia was found in a bed in the home is not sufficient to establish that he was the type of overnight guest who would have an objectively reasonable expectation of privacy in the home. Further, testimony at the suppression hearing demonstrated that Garcia had not in fact slept in the bed in which he was found, but rather, that he had gotten into the bed just minutes before Officer Martinez found him there. Additionally, the evidence that Garcia was drinking alcohol all night with Rojo in the house does not, by itself, establish that Garcia had a reasonable expectation of privacy in house. The fact that a guest has been drinking with a third party in the third party's home overnight is insufficient to confer on that guest the status of an "overnight guest" of the kind contemplated by the Supreme Court in Minnesota v. Olsen (1990) 495 U.S. 91, 99.^[6]

Even if we were to assume that Garcia's status as a guest in the Rojo home during a night of drinking was sufficient to support some type of reasonable expectation of privacy, there is no evidence to support a claim that an expectation of privacy in areas of the house other than the bedroom in which Garcia claims to have slept and/or the areas of the home in which he was drinking would have been objectively reasonable. Because the evidence in question was discovered in a different bedroom from the one in which Garcia was found, Garcia could not have had a reasonable expectation of privacy in the area where the evidence was found. (See Rakas, supra, 439 U.S. at p. 142 [commenting that a casual visitor in the kitchen of a house would not have an interest or legitimate expectation of privacy in a basement of the house he had never seen nor been permitted to enter].)

Garcia failed to meet his burden to establish that his own Fourth Amendment rights were violated by the officers' warrantless entry into the Rojo residence because the evidence in the record is insufficient to demonstrate that he had a legitimate expectation

of privacy in the home. Further, the evidence at issue would inevitably have been discovered and seized pursuant to a warrant officers obtained after the initial search. We therefore affirm the trial court's decision to deny Garcia's motion to suppress evidence seized from the Rojo residence.

B. The trial court did not abuse its discretion in denying Garcia's request

to sever his trial from Rojo's

Garcia contends that the trial court should have severed his trial from Rojo's because there was a possibility that at a separate trial, Rojo would have provided testimony exonerating Garcia.

1. Additional background

Against the advice of his counsel, Rojo testified at the hearing on Garcia's pretrial severance motion. Rojo claimed that he had never interacted with Chilton, but admitted to having had "an interaction" with El Belle. Rojo further claimed that no one else was involved in his "interaction" with El Belle.

During the prosecutor's cross-examination, Rojo stated that he was drunk the night before the incident, and that he had broken a window in his house, cutting himself in the process. After Rojo went to the hospital by himself and returned home, Garcia came over to Rojo's house and they drank together. There were a "couple other people" with Garcia and Rojo in the house. However, when asked whether a particular individual had been there with them, Rojo could not remember. Rojo also could not remember whether he had left the house again that evening.

The next morning, Rojo left his house. According to Rojo, Garcia also left the house, following approximately 20 or 30 feet behind Rojo. In response to a question about where he was going when he left the house, Rojo stated, "I was just walking. I don't know, I was a little drunk." When asked whether Garcia was walking 20 to 30 feet behind him the entire time, Rojo said that Garcia had been closer than that. Specifically, Rojo said that Garcia was walking about 10 to 15 feet behind him, but Rojo could not remember exactly how far because he was drunk at the time. He claimed that he and Garcia did not talk with each other while they were walking.

Rojo testified that he did not remember where the encounter with El Belle had taken place. When asked whether it had occurred in a building or on the street, Rojo responded, "I don't remember that much." When asked whether Garcia was still 10 to 15 feet away when Rojo "interacted" with El Belle, Rojo said, "I don't think he knew what was going on." In response to a question concerning what "kind of interaction" he had with El Belle, Rojo said, "I was a little too drunk to remember." Rojo responded, "I don't remember" when asked whether he was friendly with El Belle.

The following colloquy occurred when the prosecutor asked Rojo to be more specific about where Garcia was during Rojo's interaction with El Belle:

"Q. Okay. And Mr. Garcia was he behind you, like 10 to 15

feet behind you?

A. Not exactly, you know.

Q. Well, how would you describe it?

A. Just behind me.

Q. How far away?

A. I don't remember. I was a little drunk."

When asked whether Garcia had had any interaction with Chilton, Rojo said that he did not know.

After hearing Rojo's testimony, the trial court said:

"Let me say that this is limited to the Isenor factors and that is, as I see it, whether or not the testimony would be exculpatory, and from what he has said now, he doesn't know anything about the incident with the 68-year-old man. He doesn't know whether the defendant was there or not that is defendant Garcia so he can't provide exculpatory evidence as to that . . . as to the other matter, he says he was too drunk to know where the defendant was so based upon that, my thought is unless you have something else that you are able to demonstrate that the Isenor factor would provide, exculpatory evidence is not met by what this gentleman has said . . . ."

The prosecutor then received permission to ask Rojo a few additional questions. In response to further questioning, Rojo started to say that Garcia had been across the street during Rojo's encounter with El Belle. Upon further inquiry as to the contradiction between this statement and Rojo's previous statement that Garcia had been behind him at the time, Rojo admitted that he "d[idn't] remember exactly quite where exactly" Garcia was. Garcia's counsel then asked Rojo whether Rojo had previously said that Garcia had not had any interaction with El Belle, and Rojo agreed that he had made that statement.

The court concluded:

"Gentlemen, based upon the testimony I have heard from Mr. Rojo, this testimony is not exculpatory. He says that he was too drunk to remember where the defendant was, so he can't say what the defendant did. He says he thinks he was across the street. He doesn't know according to his testimony, so this is not exculpatory within the meaning of that phrase. The testimony is not significant and I am certainly not satisfied that it is bona fide. So the severance motion is denied."

2. Analysis

Section 1098 sets forth the general preference for joint trials: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of the others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial."

Pursuant to statute, the matter of granting separate trials remains within the discretion of the trial court. (People v. Turner (1984) 37 Cal.3d 302, 312 (Turner), overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1115.) A court should separate the trial of codefendants "in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony." (People v. Massie (1967) 66 Cal.2d 899, 917, fns. omitted.) "Whether denial of a motion to sever the trial of a defendant from that of a codefendant constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion rather than on what subsequently develops." (People v. Isenor (1971) 17 Cal.App.3d 324, 334 (Isenor).)

Relying on a federal case, the court in Isenor articulated several "areas of inquiry" a trial court should consider when faced with a motion to sever based on potentially exculpatory testimony by a codefendant: "(1) Does the movant desire the testimony of the codefendant; (2) will the testimony be exculpatory; (3) how significant is the testimony; (4) is the court satisfied that the testimony itself is bona fide; (5) on the basis of the showing at the time of the motion, how strong is the likelihood that, if the motion were granted, the codefendant will testify; and (6) what is the effect of the granting in terms of judicial administration and economy?" (Isenor, supra, 17 Cal.App.3d at p. 332, citing Byrd v. Wainwright (5th Cir. 1970) 428 F.2d 1017, 1019-1020.)^[7]

In this case, the trial court concluded that the proffered testimony was not exculpatory. The record supports that determination. "At its broadest, 'exculpatory' means '[c]learing or tending to clear from alleged fault or guilt.' [Citation.]" (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 377.) Rojo presented no testimony that would tend to clear Garcia from guilt in the Chilton robbery, since Rojo claimed to know nothing about the incident with Chilton. With regard to the El Belle robbery, Rojo essentially placed Garcia at the scene of the crime and admitted that he could not remember where, exactly, Garcia was standing during Rojo's interaction with El Belle. Further, the admission that Rojo had no memory about what happened that morning, including as to Garcia's involvement in the robbery, directly contradicted Rojo's initial claims that Garcia did not interact with El Belle at all. Rojo's testimony thus did not tend to exculpate Garcia with regard to either of the robberies. The trial court therefore did not abuse its discretion in denying Garcia's motion to sever.

C. Garcia's counsel did not provide ineffective assistance in declining to call

codefendant Rojo as a witness and to seek a mid-trial severance

Garcia contends that his counsel was ineffective because counsel did not request that Rojo be called as a witness at trial. As a result, according to Garcia, "the record does not reflect Rojo actually invoking his right not to testify at the joint trial," and "[i]f Rojo had exercised his right not to testify, then he would have been unavailable as a witness and his previous testimony could have been used at trial."^[8]

To prevail on his claim of ineffective assistance of counsel, Garcia must demonstrate (1) that "counsel's representation fell below an objective standard of reasonableness" and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Holt (1997) 15 Cal.4th 619, 703.) The inquiry as to counsel's performance "must be whether counsel's assistance was reasonable considering all the circumstances." (Strickland, supra, 466 U.S. at p. 688.) This means that "[r]eviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.)

Appellate 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.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 954.) Whether to call certain witnesses is ordinarily "a matter of trial tactics." (People v. Bolin (1998) 18 Cal.4th 297, 334 [challenge regarding counsel's failure to call defense experts]; see also People v. Mitcham (1992) 1 Cal.4th 1027, 1059 ["The decisions whether to waive opening statement and whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess."].)

Garcia contends that "no reasonably competent attorney would have failed to properly preserve this issue for appeal," and that there could be "nothing tactical about failing to properly preserve an issue on the record for appeal." We disagree with this assessment. Garcia's trial counsel may have had a number of tactical reasons for not calling Rojo to testify. Rojo's pretrial testimony was inconsistent and confusing, and did not actually exculpate Garcia as to either of the crimes. Rojo admitted that he was intoxicated during his interaction with El Belle, and stated that he was "a little too drunk to remember" exactly what happened that day. In response to a number of questions, Rojo claimed that he could not remember what had occurred.

In addition, although the trial court ultimately concluded that Rojo's testimony did not exculpate Garcia because Rojo could not remember what had happened, the trial court also expressed concern as to whether Rojo's testimony was credible.^[9] Counsel may have thought that, in view of Rojo's poor performance while testifying at the pretrial hearing, a jury would be unlikely to find Rojo's testimony credible. Counsel may have believed that calling Rojo to testify and/or using Rojo's prior testimony would pose a risk of damaging Garcia's defense if the jury did not believe Rojo, or considered his recollection worthless because of his admitted intoxication and poor memory of the events of that morning.

Further, although Rojo was apparently attempting to provide exculpatory testimony as to Garcia's involvement in the charged offenses, Rojo's testimony placed Garcia at the scene of at least one of the robberies. Under these circumstances, it is possible that defense counsel did not want to elicit Rojo's testimony before the jury, fearing that it would do more harm than good. Trial counsel could have concluded that the possible advantage of gaining a severance, which was further limited by the small likelihood that a severance would be granted, did not outweigh the potential prejudice that might arise from allowing the jury to hear Rojo's version of the day's events, and having Rojo face cross-examination. The decision whether or not to call Rojo as a witness at trial was a matter of trial strategy. Trial counsel acted well within the bounds of reason in not calling Rojo as a witness, particularly in view of his poor performance at the pretrial hearing.

D. The trial court did not abuse its discretion in not declaring a mistrial on the

ground that Officer Martinez mentioned that Garcia told Martinez he was on

parole

Garcia contends that the trial court erred in denying his motion for a mistrial based on the fact that the jury heard Officer Martinez testify that Garcia was on parole at the time of his arrest. According to Garcia, the reference to his status as a parolee is likely to have prejudiced the jury.

1. Additional background

Before the trial, defense counsel moved to bifurcate the allegations concerning Garcia's prior convictions so that "the jury does not hear [about] those [priors]." The court granted the request.

During direct examination of Officer Martinez, the prosecutor asked Martinez about his participation in the curbside lineups that were conducted in front of the Rojo house. Officer Martinez explained that he had not been involved in the lineups, and that he was inside the house at the time, conducting an investigation. When asked whether he had been primarily responsible for communicating with the witnesses, or presenting potential suspects during the line-ups, Officer Martinez said,

"We were inside the house. I stopped Mr. Rojo as he walked out along with the two companions. And we were continuing in our investigation. So I asked them to have a seat at that porch. We conducted our protective sweep inside the residence; came across Ms. Ochoa and Mr. Garcia. Mr. Garcia advised he was on parole."

Garcia's attorney objected and moved to strike this testimony on the ground that it was nonresponsive. The court sustained the objection and granted the motion to strike. The prosecutor proceeded with his questioning of Officer Martinez.

A short time later, defense counsel asked for a sidebar conference. The following colloquy occurred at sidebar:

"Mr. Blake[^[10]]: Your Honor, unfortunately it turned out,

apparently, that Officer Martinez blurted out that my client's a

parolee. The purpose of our bifurcation was to keep that evidence

from the jury. I think I have no choice but to move for a mistrial.

[] This is fatal and I don't think any curative instructions might

help, despite my objection and ask [sic] to strike. They've already

heard the the bell's rung.

"Mr. Ou: I think the court can give an instruction.

"Mr. Quinones: I would join in Mr. Blake's remarks.

"The Court: All right. The motion for mistrial will be denied. I

will, however, instruct the jury to disregard the comment, if you

wish, and to further say that the issue for them to decide is the

charges in this case and this case alone.

"Mr. Blake: Nevertheless I would renew my request. I think the

bell has been rung. And I think where the defense took place [sic] and it's almost in an incredible position.

"The Court: The question is that the you made an objection.

The court sustained the objection. I ordered it stricken. Now if you

want me to do further admonition, it just highlights it with them

because I told them in the preinstructions when I ordered something

stricken, they are to disregard it. [] When I do the final

instructions, I'm going to give them that instruction again. So

however you want me to handle it, but I will either give them further

admonition or reply on the instructions that the court has given and

will give about them disregarding stuff that was stricken from the

record.

"Mr. Blake: I understand, Your Honor. The problem that I see

is that no matter which way I choose, the bell has already been rung.

I certainly don't want to highlight ─

"The Court: Then I won't give any further admonition.

"Mr. Blake: But it's, nevertheless, I think, it's grounds for a

mistrial.

"The Court: All right.

"Mr. Blake: Thank you."

Defense counsel argued again in a motion for new trial that Officer Martinez's comment regarding Garcia's status as a parolee was unduly prejudicial. The trial court denied the motion for new trial.

2. Analysis

Garcia challenges the trial court's decision to deny his request for a mistrial. Garcia asserts that exposing the jury to his prior criminal behavior may have prejudiced his case and rendered the verdict suspect.

"A mistrial should be granted" only "if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.]" (People v. Haskett (1982) 30 Cal.3d 841, 854.) "'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.] 'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.' [Citation.]" (People v. Williams (2006) 40 Cal.4th 287, 323.)

Although references to a defendant's prior criminal acts have the potential to prejudice the jury, the fact that such a reference has been made does not automatically render a trial unfair. (See People v. Jennings (1991) 53 Cal.3d 334, 375 [rejecting argument that "testimony revealing [defendant's] ex-convict status, and his prior arrest, is so prejudicial that its admission must always result in reversal of the judgment"].) "As the [United States Supreme Court] has recognized, 'it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 683 [on retrial, references to fact that defendant previously had been convicted of murder and sentenced to death were not incurably prejudicial].)

The trial court was in the best position to gauge the effect of the reference to Garcia's parole status on the jury. Nothing in the record undermines the trial court's implicit conclusion that Officer Martinez's brief reference to Garcia's having told Martinez that he was on parole did not irreparably damage Garcia's chance of receiving a fair trial. Neither counsel nor the court drew further attention to the issue of Garcia being on parole, and the court ordered Officer Martinez's entire answer, which included more than just the reference to parole, stricken as nonresponsive. The court had previously instructed the jury that it was to disregard testimony that the court ordered stricken from the record. It was reasonable for the court to believe that the jury would follow this instruction.

Further, the reference was not significant in the context of the entire trial. The prosecution's case against Garcia was strong. Specifically, each of the two victims identified Garcia as one of the perpetrators, both at a curbside lineup just after the incidents, and at trial. In light of the strength of the evidence, and the fact that the court admonished the jury to disregard any stricken testimony, the trial court did not abuse its discretion in concluding that Garcia's chances of receiving a fair trial were not irreparably damaged by the reference to his being on parole. The trial court thus did not abuse its discretion in denying Garcia's motion for a mistrial. (See People v. Bolden (2002) 29 Cal.4th 515, 555 [a witness's brief reference to a "parole office" in connection with obtaining the defendant's address was not significant in the context of the entire trial, and the trial court did not abuse its discretion in ruling that defendant's chances of having a fair trial were not irreparably damaged by the reference]; see also People v. Harris (1994) 22 Cal.App.4th 1575 [affirming court's denial of a mistrial after a victim mentioned having received telephone calls from defendants' parole officers].)

E. The trial court did not err in imposing the upper term

Garcia contends that the trial court erred when it imposed the upper term of five years on count 1 because the court did so based on facts not found by the jury or admitted by Garcia.

Prior to imposing the upper term, the trial court found the existence of two factors in mitigationthat Garcia's prior performance on parole was satisfactory and that Garcia is young and therefore "not possessed with the judgment and wisdom that comes with age." With regard to the circumstances in aggravation, the court said,

"The defendant has engaged in violent conduct which indicates a serious danger to society. This is an aggravating factor under 4.[4]21(b)(2). The defendant's prior convictions as an adult a[nd] sustained petitions for juvenile delinquency are increasing and of increasing seriousness. This is an aggravating factor under 4.421(b)(2[])[.] Under 4.421(b)(4), the defendant was on parole when this crime was committed. Under 4.421(b)(5), the defendant's prior performance on probation was unsatisfactory in case SCS167175."

In imposing the upper term, the trial court concluded that the two factors in mitigation did not outweigh the four factors in aggravation:

"It is not the quantity that is controlling when it comes to the aggravating and mitigating factors, it is the quality of those factors. The quality of those factors in aggravation far outweigh those in mitigation. Therefore, in accordance with applicable sentencing rules, the upper term for the offense is appropriate.

Garcia challenges his sentence on the basis that the trial court committed Blakely^[11]error in sentencing him to the upper term. Garcia contends that in sentencing him to a term above the presumptive middle term, the trial court relied on factsother than the fact of a prior convictionthat were neither found by the jury nor admitted by him.

After Garcia appealed from his judgment of conviction, the United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S.___, 127 S.Ct. 856, to address the constitutionality of California's determinate sentencing law (DSL) as interpreted by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I). In Black I, the Supreme Court determined that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Black I, supra, 35 Cal.4th at p. 1244.) In Cunningham, the United States Supreme Court rejected the conclusion in Black I and held that the imposition of an upper term sentence under California's determinate sentencing law, based on neither a prior conviction nor facts found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United States Constitution:

"California's determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term' sentence. The facts so found are neither inherent in the jury's verdict nor embraced by the defendant's plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does." (Cunningham, supra, 127 S.Ct. at p. 860.)

The Cunningham court reasoned:

"As this Court's decisions instruct, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) [Apprendi]; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556 (2002) [Ring]; Blakely [, supra,] 542 U.S. 296; United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005) [Booker]. '[T]he relevant "statutory maximum, "'this Court has clarified, 'is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.' Blakely, 542 U.S., at 303-304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham, supra, 127 S.Ct. at p. 860.)

The Cunningham court reversed the defendant's upper term sentence because "the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial." (Cunningham, supra, 127 S.Ct. at p. 860.)^[12]

The California Supreme Court recently reconsidered its holding in Black I in light of the Cunningham decision. (People v. Black (July 19, 2007, No. S126182) ___ Cal.4th ___, 2007 Cal. LEXIS 7604 (Black II).) In addition to addressing a number of other issues raised by Cunningham, the Black II court concluded that the existence of "a single aggravating circumstance" renders a defendant eligible for the upper term, thus making the upper term the "statutory maximum" in cases in which at least one aggravating factor has been established in a manner consistent with the requirements of the Sixth Amendment. According to the court, "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466 (Apprendi)] and its progeny, 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, 2007 Cal. LEXIS 7604, 19 .)

In this case, the trial court relied on at least one aggravating circumstance that rendered him "eligible for the upper term sentence." (Black II, supra, 2007 Cal. LEXIS 7604, 3, 33.) Specifically, the trial court relied on the fact that Garcia's prior juvenile adjudications and adult convictions were increasing in number and were of increasing seriousness as a circumstance in aggravation that warranted imposition of the upper term. In Black II, the Supreme Court concluded that factors relating to a defendant's recidivism need not be found by a jury nor admitted by the defendant in order to be established in accordance with Apprendi becau