P. v. Esquera

Filed 6/22/06 P. v. Esquera CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Janet I. Kintner, Judge. Affirmed.

A jury convicted Adrian Esquera of unlawfully taking/driving a vehicle (Veh. Code, § 10851, subd. (a); count 1), receiving stolen property (Pen. Code, § 496d; count 2), evading a peace officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 3), misdemeanor hit and run (Veh. Code, § 20002, subd. (a); count 4) and misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 5). In a bifurcated proceeding, the court found Esquera had previously suffered seven no probation priors and one prison prior. (Pen. Code, §§ 667.7, subd. (b), 1203, subd. (e)(4).) Consequently, the court found true allegations as to counts 1 and 2 that Esquera had previously been convicted of a felony vehicle theft within the meaning of Penal Code section 666.5, subdivision (a).

The court sentenced Esquera to county jail for one year on the two misdemeanor offenses (counts 4 & 5) to run consecutively, followed by a total prison term of five years, eight months, which consisted of a four-year upper term on count 1, a consecutive term of eight months on count 3, and one year for the prison prior. The court stayed sentence on count 2 under Penal Code section 654.^[1]

Esquera appeals, contending the trial court prejudicially erred in excluding his postarrest statements to the police that indicated he had been shot at and was attempting to evade his attacker at the time of the police chase for which he was arrested. Esquera also claims, that despite the holding by our Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black), the imposition of upper terms and consecutive sentences in this case violated his federal Constitutional rights to a jury trial and proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We affirm.

FACTUAL BACKGROUND

At around 2:00 a.m. on September 23, 2004, California Highway Patrol (CHP) officers Victor Nevarez and Leo Nava, both in uniform and in a marked black and white patrol car, observed a car about 10 car lengths ahead of them on southbound Interstate 5 (I-5), north of Interstate 8, make an abrupt lane change. As the officers came up behind the car, they saw it weaving and crossing the lane lines in the light traffic. Nevarez activated the three, forward-facing steady red lights on the top of his car, along with the "wigwag" feature, which flashes the bright headlights off and on. Nevarez then used the P.A. system to instruct the driver to exit at the next offramp at Washington Street.

When the car took the Washington Street exit, the driver accelerated to approximately 90 miles per hour and drove through a red light without slowing down. Nevarez then activated the rotational red and blue overheard lights and sirens and followed the car as it got back on southbound I-5, chasing it at speeds up to 110 miles per hour. The car exited at Front Street and fishtailed as it slowed down to about 80 miles per hour traveling southbound on that street. When the driver attempted to make a right turn onto Cedar Street, he lost control and crashed into a parked car.

With the patrol car's lights and siren still activated, the officers pulled up behind the chased vehicle, which they determined was a white Acura Integra, and obtained its license plate number. As the officers got out of their car to approach the Acura, the driver also got out, turned toward the officers with his arms raised in the air, saying loudly "I got nothing. I got nothing." The man then suddenly turned away from the officers and began walking and then running away. Nevarez chased the man, shouting "Stop CHP Stop," and finally caught and tackled him to the ground. The man kept saying, "I got nothing." With Nava's assistance, Nevarez handcuffed the man, arrested him and took him back to the patrol car. Nevarez noticed that the man, identified as Esquera, showed objective symptoms of alcohol intoxication, i.e., his breath smelled of alcohol and his eyes were red and watery.

The officers then inspected the Acura. In addition to deployed airbags due to the crash, the officers found the plastic housing around the steering mechanism was broken, the ignition mechanism was gone, there was damage to the door lock and a crow-bar type tool was on the floor. It was discovered that the Acura was owned by a man named Frank Issa who, when contacted at about 2:30 a.m. that night, told the officers he had not given anyone permission to drive his car, which had been parked in front of his apartment complex in El Cajon.

Esquera's blood was drawn at the jail at 3:44 a.m. and the test indicated a .07 percent blood alcohol level. Esquera was subsequently charged with numerous offenses in this case and the above evidence was presented at the jury trial. In addition, evidence was presented that Esquera did not attempt to leave a note on the parked car he had crashed into and an expert opined that a person with a blood alcohol level of .07 percent who was weaving while driving and who exhibited symptoms of alcohol consumption was under the influence of alcohol for purposes of driving.

Esquera testified in his own defense. He claimed that on the night of September 22, 2004, he had consumed about four 24-ounce cans of Budweiser beer while he drank after work with two friends in an alley in the vicinity of Linda Vista or Clairemont. At some point, a man named Dionas pulled up in a white Acura Integra with two other men and drank with Esquera's group. Later, Dionas accused Esquera of having sex with his girlfriend Tina, pulled a gun on Esquera and shot at him. As Esquera was running down the alley to avoid being shot, Tina pulled up in another white Acura Integra, got out of the car, leaving the engine running and struggled with Dionas, pushing his gun arm into the air, while yelling at Esquera to get in her car and take off. Esquera did so as more gunshots were fired. He drove out of the alley with the radio on and the other Acura chasing him. Esquera drove fast, running red lights to get away. Before he got to I-5 south, Esquera saw an amber flash, which he believed to be another gunshot. At that point he was driving about 118 miles per hour to get away from his pursuer. He did not look back because he had to pay attention to his driving. He never saw a patrol car, flashing red police lights, or hear a siren.

Esquera also did not remember exiting at Washington and getting back on the freeway. He only remembered he "came to" after the crash. He sustained facial injuries from the airbags and claimed he did not recall getting out of the car, seeing police officers, throwing his hands in the air or saying, "I got nothing." Nor did he remember turning and running from police. He only remembered being handcuffed. Esquera claimed he did not steal the Acura, have any intent to steal the car or have anything to do with damaging the car's steering column. He got into the car solely to avoid being shot.

On cross-examination, Esquera conceded he had previously been convicted of burglary and unlawfully taking and driving a vehicle, both felonies.

DISCUSSION

I

EXCLUSION OF ESQUERA'S POSTARREST STATEMENTS

In limine, the prosecutor brought a motion to admit Esquera's prearrest statements and to exclude his statements made after arrested and admonished under Miranda v. Arizona (1966) 384 U.S. 436. The prosecutor argued Esquera's voluntary statements to the police when he first got out of the crashed car, "I got nothing, I got nothing," were not offered for their truth, but only to show his state of mind that he knew it was the police who were chasing him. The prosecutor then explained that Esquera's subsequent statement claiming he believed he was fleeing from people who were shooting at him was not part and parcel of his original statements because Esquera had run from the police, had been tackled, placed in handcuffs, arrested and advised of his rights, and had then waived those rights before making the statement sought to be excluded. Esquera's counsel argued the statement after Esquera's arrest and waiver was admissible together with the other statements to show his continuing state of mind during the stop by the police, especially in light of the fact he had been traumatized by the airbags exploding during the crash.

The court ruled the first statement ("I got nothing, I got nothing") was admissible as a spontaneous statement, but that the statement made after Esquera was Mirandized could not come in. The trial judge explained that "the defense cannot use it as an exculpatory statement, and that is clearly what they attempt to do. [¶] If the defendant wants to say what his state of mind was, he can testify and be cross-examined . . . I find [the second statement] not to be part and parcel of what was said when [Esquera] first came out of the vehicle. That is separate." The court noted, however, the defense could show that the crash had quite an impact on Esquera.

On appeal, Esquera contends the trial court prejudicially erred when it excluded evidence of his statement that he fled from police because he believed he was being chased by individuals who were shooting at him. Applying the abuse of discretion standard to the trial court's ruling on the admissibility of Esquera's post-Miranda statement, we conclude the court's ruling was correct. (See People v. Cox (2003) 30 Cal.4th 916, 955.)

Here, Esquera claims his second statement made in response to police questioning after being advised of his rights was not offered to prove the truth of those facts or to prove an element regarding the taking or driving of the Acura. Rather he argues such statement, like his "I got nothing" statement, was spontaneous and only offered to show his state of mind at the time of the stop, which he argues included his running from the crash because he was confused and stunned by the deployed airbags. We disagree.

" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Generally, hearsay evidence is inadmissible unless the law provides an exception for its admission. (Evid. Code, § 1200, subd. (b).) Although Esquera argued his statement was not offered to prove its truth, as the People note in their respondent's brief, the statement was clearly hearsay because it was essentially offered to show Esquera's belief he was being chased by persons other than the police.

Esquera claims the statement was nonetheless admissible under the state of mind exception to the hearsay rule set forth in Evidence Code section 1250. Such section provides: [¶] (a) Subject to Section 1252, evidence of a statement of a declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed." (Italics added.) Evidence Code section 1252 states that, "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness."

Because Esquera's statement made after he was in police custody and had been read his rights described his state of mind at the time of the crime while he was fleeing police, it described a previously existing mental state and not a "then existing" state of mind as provided for in the Evidence Code section 1250 exception.^[2] Contrary to Esquera's attempt to make the subject statement part and parcel of his spontaneously uttered statements as he got out of the Acura, the trial court correctly found they were separate and made after Esquera had time to run and reflect on what he was going to say to the police. "The United States Constitution compels the admission of hearsay evidence only if the proponent shows the evidence is highly relevant to a critical issue and is sufficiently reliable. [Citations.] Here, . . . '[t]here was "ample ground to suspect defendant's motives and sincerity" when he made the statements.' [Citations.] 'The same lack of reliability that makes the statements excludable under state law makes them excludable under the federal Constitution.' [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 629.)

In this case, Esquera's motives and sincerity at the time he made the post-Miranda statement to the police were questionable and completely inconsistent with his earlier conduct and statements when he got out of the Acura after the chase ended in the crash. Moreover, he had ample opportunity when he testified at trial to present evidence of his belief during the chase without the statement being admitted earlier. We believe the court acted well within its discretion in excluding Esquera's self-serving statement made after he was arrested and advised of his rights.

II

CLAIMED BLAKELY ERROR

In limine, when the court and counsel discussed the bifurcation of the priors for trial, the court inquired whether the prosecutor was "making any allegations of aggravated circumstances for any of [the priors] under . . . [Blakely]?" The prosecutor responded that "the sheer volume of the defendant's priors are sufficient under [Blakely]." The court made clear that the prosecutor was not submitting any separate allegations for the jury to make findings in such regard. Esquera subsequently waived jury on the prior conviction allegations.

At sentencing, after denying probation and sentencing Esquera to one year in jail for the two misdemeanors (counts 4 & 5), the trial judge stated it had spent a great deal of time in determining the appropriate term and that after reviewing "the Blakely case and United States [v.] Booker and Fanfan . . . I do believe that the upper term is appropriate." The judge noted "the reason for selecting the upper term is the only thing in mitigation . . . is that the defendant was suffering from a mental or physical condition, but I . . . do not find that persuasive in this situation. [¶] The circumstances in aggravation [are] the manner in which the crime is carried out indicates planning. Burglary tools were found in the vehicle. The ignition was broken. . . . the crime involved damage of great monetary value. . . . Defendant engaged in violent conduct which indicates he's a danger to society. . . . Defendant's prior convictions are numerous or of increasing seriousness. [¶] I spent quite a bit of time looking at his prior record in addition to the prison prior, which is alleged here and . . . [d]efendant was on parole when the crime was committed [and his] prior performance on probation or parole was unsatisfactory."

The trial judge further noted that "[u]nder Booker and Fanfan, the [c]ourt can consider a fact found unproved by the jury, conduct not charged, vulnerability of the victim, the defendant's role of leadership in the commission of the crime, post verdict . . . conduct, information about the crime, and information in the probation report. And all of this indicates the upper term is appropriate. [¶] This . . . was not . . . the kind of case where somebody gets the midterm. The facts were aggravated. The defendant's record is aggravated. His . . . attitude, his lack of remorse. It's all aggravated. This is certainly an aggravated term. And I don't take this lightly and especially in view of the recent U.S. Supreme Court cases. So it's the upper term of four years on Count 1."

The court then imposed a consecutive one-third the midterm of two years (eight months) for count 3, stating "the aggravants outweigh the mitigants as well on this."

On appeal, Esquera contends that by imposing the upper term and consecutive sentences in this case the trial judge violated his federal Constitutional rights to a jury trial and proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments and Blakely, supra, 542 U.S. 296. The People maintain that any claim of Blakely error is waived because Esquera and his counsel did not object below on such grounds even though the Blakely case was filed before the crimes, trial and sentencing occurred in this case. We agree any Blakely error is waived.

The United States Supreme Court in Blakely, supra, 542 U.S. 296, held that "a defendant in a criminal case is entitled to a jury trial on any fact that increases the maximum sentence to which the defendant is exposed for a particular offense, unless that fact has been admitted by the defendant or is based on the defendant's prior convictions." (Black, supra, 35 Cal.4th at p. 1246.) As the People note, Blakely was decided June 24, 2004, before the January 2005 trial in this case and the record reflects the trial judge was attuned to the decision, making references to Blakely in limine and at the time of sentencing. Esquera did not object on Blakely grounds at those times or inform the court he would object to any aggravating factors not included in the verdict. In addition, Esquera specifically waived his right to a jury trial on his prior convictions allegations. Generally, issues not raised below are subject to forfeiture. (People v. Saunders (1993) 5 Cal.4th 580, 590 & fn. 6.) We, therefore, conclude any Blakely issue was forfeited by Esquera's failure to raise it in the trial court. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1103.)

In any event, as Esquera recognizes, our Supreme Court in Black, supra, 35 Cal.4th 1238, found the reasoning in Blakely, as well as that in United States v. Booker (2005) 543 U.S. 220 (Booker), was inapplicable to the California determinate sentencing law (DSL) because "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, supra, at p. 1244.) Rather, the DSL "authorize[s] a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range." (Id. at p. 1254.)

Specifically with regard to consecutive terms, the court in Black stated that, "When a judge considers the circumstances of each offense and the defendant's criminal history in determining whether the sentences are to be served concurrently or consecutively, he or she cannot be said to have usurped the jury's historical role. Permitting a judge to make any factual findings related to the choice between concurrent or consecutive sentences does not create an opportunity for legislatures to eliminate the right to a jury trial on elements of the offenses. Nothing in the high court's decisions in Apprendi [v. New Jersey (2000) 530 U.S. 466 (Apprendi)], Blakely, or Booker suggests that they apply to factual determinations that do not serve as the 'functional equivalent' of an element of a crime." (Black, supra, 35 Cal.4th at p. 1263.)

Esquera's arguments regarding the upper and consecutive terms regarding his prison sentence have thus been resolved against him by the holding in Black.^[3] Although we recognize the reasoning in Black with regard to upper term sentences may be short-lived in light of the United States Supreme Court's grant of certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted Feb. 21, 2006, No. 05-6551, sub. nom. Cunningham v. California (2006) ___ U.S. ___ [126 S.Ct. 1672, 164 L.Ed.2d 395]),^[4] we are required to follow Black's holding at this time. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Moreover, even assuming Esquera's claim is not waived, the holding regarding the imposition of upper terms in Black, supra, 35 Cal.4th 1238 is overturned, and the court erred in relying on several of the aggravating factors, we would find any Blakely error in this case harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

As noted above, the trial court imposed an upper term on count 1 after having found only one insignificant mitigating factor which was outweighed by numerous aggravating factors. The court properly relied on the facts Esquera's prior convictions were numerous and of increasing seriousness, he was on parole at the time he committed the charged offenses, and his past performance on probation and parole had been unsatisfactory. These factors fall within the prior conviction exception preserved by Blakely, supra, 542 U.S. 296 and Apprendi, supra, 530 U.S. 466. (Cf. People v. Thomas (2001) 91 Cal.App.4th 212, 216-223 [prior prison term enhancements are within prior conviction exception of Almendarez-Torres v. U.S. (1998) 523 U.S. 224].) Because any one of these proper factors in aggravation is sufficient to support imposition of an upper term (People v. Osband (1996) 13 Cal.4th 622, 728), and the court expressly rejected an available leniency option when it imposed consecutive terms, the court's reliance on other factors is harmless beyond a reasonable doubt. A reversal of the sentence is not required when there is no likelihood a more favorable term would have been imposed in the absence of the error. (Ibid.)

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

McINTYRE, J.

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^[1] Although the abstract of judgment and the court minutes reflect the court imposed and then stayed a four-year upper term for count 2, the sentencing transcript shows the court stated it was not sentencing on count 2 because of the Penal Code section 654 stay. Technically, the oral pronouncement of sentence constitutes an unauthorized sentence because the court is required to impose a sentence for each count a defendant stands convicted of regardless of it then being stayed under Penal Code section 654. However, we need not modify the sentence or remand for resentencing because the record reflects the court clearly intended to impose an upper term and correctly noted such sentence and stay on the abstract of judgment.

^[2] The People correctly point out that "evidence of a statement of the declarant's state of mind . . . at a time prior to the statement [being made] . . ." (Evid. Code, § 1251), is conditioned on the unavailability of the declarant as well as being subject to Evidence Code section 1252 regarding trustworthiness. Because Esquera was present and testified at his trial, this exception to the hearsay rule is also inapplicable.

^[3] We note that the punishment for the two misdemeanor offenses in counts 4 and 5 do not fall under the DSL. Although the sentence for each is prescribed by statute (Pen. Code, § 19), such may be served concurrently or consecutively to any other term when multiple offenses are sentenced. (Pen. Code, § 669). That portion of Black, supra, 35 Cal.4th 1238 regarding Blakely, supra, 542 U.S. 296, not applying to the determination of consecutive versus concurrent terms therefore applies equally to multiple misdemeanors offenses as well as multiple felony offenses for which sentences are imposed under the DSL.

^[4] The issue to be considered by the Supreme Court is whether the current DSL in California that allows judges to impose enhanced sentences based on their determination of facts not found by the jury violates the Sixth Amendment.