P. v. Salinas

Filed 3/9/07 P. v. Salinas CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION AND FACTS

On April 13, 2005, California Highway Patrol Officer Chris Maselli arrested appellant Jesse Martin Salinas for driving under the influence of a controlled substance, later determined to be methamphetamine. During the booking process, appellant made a threatening statement to Maselli. On the next day, appellant twice walked past Masellis house with his fists clenched and an angry look on his face. In an unrelated incident, appellant beat his sister into unconsciousness and broke her nose on November 25, 2004.^[1]

Appellant was convicted after jury trial of witness intimidation (count 1), stalking (count 2), resisting arrest (count 3), being under the influence of a controlled substance (count 4), driving while under the influence of alcohol or a drug (count 5), and assault by means likely to produce great bodily injury (count 6). (Pen. Code, 136.1, subd. (c)(1), 646.9, subd. (a), 148, 245, subd. (a)(1); Health & Saf. Code,  11550; Veh. Code,  21352, subd. (a).)^[2] The jury found true street gang enhancement allegations attached to counts 1 and 2 and a great bodily injury enhancement attached to count 6. ( 186.22, 12022.7.) Appellant admitted a prior strike and a prison prior. ( 667, subds. (b)-(i), 1170.12, subd. (a), 667.5, subd. (b).)

Appellant was sentenced to an aggregate term of 51 years to life imprisonment.

Appellant argues that a gang experts testimony about the bases for his opinions that the South Side Locs are a criminal street gang and that appellant is a member of this gang constituted inadmissible testimonial hearsay in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We disagree. People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 (Thomas) rejected this contention; we agree with Thomass reasoning and result. Appellant also argues that his sentence on count 1 is unauthorized. Respondent concedes the sentencing error and we accept this concession as properly made. Thus, we will affirm the convictions and remand for resentencing.

DISCUSSION

I. Appellant waived Crawford challenge to portions of the gang experts testimony; the related ineffective assistance claim fails because a confrontation clause objection would not have succeeded.

Kings County probation officer Marc Cerda testified as a gang expert. He opined that the South Side Locs in Kings County are a subset or clique of the Nortenos, which is a Northern California street gang. The South Side Locs meet the statutory definition of a criminal street gang. He also opined that appellant is a member of the South Side Locs. Finally, he opined that counts 1 and 2 were committed for the benefit of, at the direction of, or in association with the South Side Locs. Cerda based his opinions that the South Side Locs are a criminal street gang and that appellant is a member of this gang on writings, reports and statements made by law enforcement officers and/or reputed South Side Loc gang members, including appellant. Trial counsel did not object on any ground to admission of this testimony.

Now, appellant argues that Cerda improperly based his opinion on testimonial hearsay in violation of Crawford. Having failed to make a specific and timely objection based on either hearsay or confrontation clause grounds below, appellant waived this challenge. (People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14.) We reject appellants position that the exception to the contemporaneous objection rule for unanticipated changes in the law applies in this instance. It was not Davis v. Washington (2006) 547 U.S. ___ [126 S.Ct. 2266] (Davis) that heralded the change in confrontation clause analysis. Rather, it was Crawford that announced the overruling of Ohio v. Roberts (1980) 448 U.S. 56 and abandonment of the sufficient indicia of reliability test. Davismerely clarified aspects of the Crawford decision and further defined the term testimonial hearsay. Appellants trial commenced in December 2005, more than a year after Crawford was decided. Thus, the waiver rule applies.

Appellant also contends that his trial attorney was ineffective because he failed to interpose a timely hearsay or confrontation clause objection to Cerdas testimony about the out-of-court statements and writings on which Cerda based his opinions. Again, we disagree. Had counsel interposed a Crawford objection to the contested portions of Cerdas testimony, it would have failed. (Thomas, supra, 130 Cal.App.4th at p. 1210.) Trial counsel is not required to make futile objections, advance meritless arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel. [Citation.] (People v. Jones (1979) 96 Cal.App.3d 820, 827; see also People v. Kipp (1998) 18 Cal.4th 349, 373 & People v. Stratton (1988) 205 Cal.App.3d 87, 97.)

Thomas, supra, 130 Cal.App.4th 1202 determined that Crawford does not apply to hearsay statements that were used as the basis for an experts opinion because such statements were not offered to establish the truth of the matter asserted, but merely as one of the bases for an expert witnesss opinion . (Id. at p. 1210.) Thomas explained:

Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion. Crawford itself states that the confrontation clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. [Citations.] (Thomas, supra, 130 Cal.App.4th at p. 1210.)

We find Thomas to be well reasoned and will follow both its reasoning and result.^[3]

Thus, because a Crawford objection to the contested portions of Cerdas testimony would have failed, appellant cannot establish either deficient performance or prejudice. (People v. Jones, supra, 96 Cal.App.3d at p. 827.) Accordingly, his ineffective assistance of counsel argument fails.

II. The sentence imposed on count 1 is unauthorized.

On count 1 (felony witness intimidation with a  186.22 enhancement, a  667.5 enhancement and a prior strike), the sentencing court imposed an aggregate term of 36 years to life imprisonment plus six years. The court calculated the term for count 1 as follows: the mid-term of three years for the violation of section 136.1, plus five years for a section 667 enhancement, plus 10 years and indeterminate term of life imprisonment for the section 186.22 street gang allegation. This aggregate total of 18 years was doubled because of the prior strike. It then imposed an additional and consecutive five-year term for a section 667 enhancement plus a consecutive one-year term for the section 667.5 enhancement.

Appellant argues that the sentence imposed for count 1 is unauthorized and he must be resentenced. Respondent concedes that appellant was improperly sentenced on this count. The parties agree that the proper sentence for count 1 is seven years to life imprisonment.

First, the parties agree that a section 667 enhancement cannot be imposed because such an enhancement was not pled, admitted or proved. A prior strike and a section 667.5 enhancement were pled and admitted. Prior to accepting appellants admissions, the court told appellant that the effect of his admissions would be a potential one-year increase in his sentence plus doubling of his principal term because of the strike. Under these circumstances, imposition of a section 667 enhancement is inconsistent with appellants right to due process of law. (People v. Mancebo (2002) 27 Cal.4th 735, 747.)

Next, the parties agree that the proper term of imprisonment for count 1, including all enhancements, is seven years to life imprisonment. The crime of forcible witness intimidation is punishable by a two-, three- or four-year term of imprisonment. ( 136.1, subd. (c).)^[4] The selected base term for the section 136.1 offense is doubled because of the prior strike; the enhancements are not doubled. (People v. Dominguez (1995) 38 Cal.4th 410, 424.) When a section 186.22 street gang allegation is found true in connection with the crime of witness intimidation, the prescribed punishment is an indeterminate term of life imprisonment with the minimum term calculated as the greater of seven years or the term calculated pursuant to section 1170, including any enhancements. ( 186.22, subd. (b)(4)(C).) A 10-year term pursuant to section 186.22, subdivision (b)(1) may not be added to the base term in count 1 because the street gang finding cannot be used to both elevate the underlying offense to a serious or violent felony under section 186.22 and then to further enhance the sentence under this same section. (People v. Briceno (2004) 34 Cal.4th 451, 465 (Briceno).) Although respondent perfunctorily contends that Briceno is inapplicable, it agrees that the proper aggregate term of imprisonment is seven years to life, thereby implicitly conceding that imposition of a 10-year term pursuant to section 186.22, subdivision (b)(1) is unauthorized.

Selection of the mitigated term for the violation of section 136.1 will result in a seven-year-to-life aggregate term of imprisonment for count 1 (two years for the violation of  136.1, doubled for the strike, plus one year for the  667.5 prison prior, elevated to indeterminate term of seven years to life for the street gang finding). Selection of the middle term for the violation of section 136.1 also will result in a seven-year-to-life aggregate term of imprisonment (three years for the violation of  136.1, doubled for the strike, plus one year for the  667.5 prison prior, elevated to indeterminate life imprisonment for the street gang finding).

DISPOSITION

The convictions are affirmed. The sentence is vacated and the matter is remanded for resentencing.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Wiseman, Acting P.J.

_______________________________

Hill, J.

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^[1] Appellant did not challenge the sufficiency of the evidence and we have not found any error requiring a prejudice analysis. Therefore, extended recitation of the factual circumstances of the offenses is unnecessary.

^[2] Unless otherwise specified all statutory references are to the Penal Code.

^[3] We are unpersuaded by the contrary reasoning contained in People v. Goldstein (2005) 6 N.Y.3d 119, which held that a psychiatric experts testimony about hearsay statements made by third-party interviewees was inadmissible under Crawford. To date, no courts outside of New York have followed Goldstein.

^[4] The parties assume that the trial court will not select the upper term when resentencing appellant. While we offer no specific direction to the trial court concerning the proper exercise of its sentencing discretion, we note that selection of the base term must be made in accordance with Blakely/Cunningham. (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856].) Imposition of the upper term would result in an aggregate sentence of nine years to life imprisonment for count 1 (four years, doubled, plus one year, elevated to indeterminate life term).