P. v. McLellan

Filed 4/5/07 P. v. McLellan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed and remanded for resentencing.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez, Angela M. Borzachillo, Marissa Bejarano and Quisteen Shum, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

INTRODUCTION

Defendant Eric Paul McLellan appeals from a judgment entered after a jury found him guilty of felony possession of heroin. The trial court found true the allegations in the information that defendant had two serious and violent prior felony convictions within the meaning of Penal Code section 667, subdivisions (d) and (e)(2)(A) and section 1170.12, subdivisions (b) and (c)(2)(A). (All further statutory references are to the Penal Code unless otherwise specified.) After striking one of the prior conviction allegations, the trial court sentenced defendant to a total prison term of 10 years. We affirm and remand for resentencing.

We reject each of defendants contentions of reversible error during trial and hold: (1) the trial court did not violate defendants federal or state constitutional rights by excluding a witnesss hearsay statement to police because the statement did not fall within a hearsay exception; (2) defendants constitutional right against self-incrimination was not violated by the prosecutors closing argument; and (3) the prosecutors closing argument did not contain factual statements she knew to be false.

We also reject two of defendants contentions with regard to sentencing, concluding (1) the trial court did not abuse its discretion by refusing to dismiss both prior conviction allegations, and (2) the trial courts imposition of prior prison term enhancements did not violate the double jeopardy clause of the federal or state Constitution, or the provisions of section 654 or 1023.

In light of the United States Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), we remand for resentencing on the sole ground the trial court imposed an upper term sentence based on aggravating circumstances found true by the court rather than by a jury beyond a reasonable doubt.

FACTS[1]

On June 14, 2005, defendant and Stacy Alonzo were detained by law enforcement officials in the parking lot of a motel in Westminster. Defendant had rented room 105 of the motel for the month of June. During a search of room 105, law enforcement officials found (1) a red bag containing two syringes, on the floor along a wall; (2) empty plastic bags, a can of butane lighter fluid, and a pair of blue thongs, all strewn across the floor in the same area as the red bag; (3) a bindle containing 167 milligrams of heroin, in plain view on top of the refrigerator; (4) 1.6 grams of heroin between the nightstand and the bed; and (5) a social security card bearing defendants name, on a shelf in the nightstand.

Approximately one‑tenth of a gram of heroin is a usable quantity. The parties stipulated defendant would recognize heroin upon sight and would know of its nature as a controlled substance.

At the time they were detained, defendant and Alonzo were standing next to a car parked in the motels parking lot. A toddler was sitting in a car seat in the backseat of the car. A police officer searched the car and found (1) several hypodermic needles strewn on the floorboard, throughout the car, among toys and other items; (2) the bottom portion of an aluminum can containing burnt residue, underneath the drivers seat; and (3) a womans purse on the floorboard behind the drivers seat, containing a glass smoking pipe of a type used for smoking methamphetamine, a check card bearing the name Stacy Alonzo, and .04 grams of methamphetamine in a small baggie.

PROCEDURAL BACKGROUND

Defendant was charged in an information with one count of felony possession of heroin in violation of Health and Safety Code section 11350, subdivision (a). The information alleged that in 1988 and again in 1992, defendant had been convicted of residential burglary, a serious and violent crime within the meaning of section 667, subdivisions (d) and (e)(2)(A), and section 1170.12, subdivisions (b) and (c)(2)(A). The information further alleged, pursuant to section 667.5, subdivision (b), that defendant previously had served four separate prison terms of one year and more, and that defendant did not remain free for a period of five years of both prison custody and the commission of each charged crime. The trial court granted defendants motion to bifurcate the trial on his prior convictions and prior prison terms.

The jury found defendant guilty as charged. The trial court found the prior conviction and prior prison term allegations true. Defendant filed a motion requesting the court to dismiss one or both of defendants prior convictions for sentencing purposes pursuant to section 1385 and People v. Superior Court(Romero) (1996) 13 Cal.4th 497 (Romero). The court exercised its discretion pursuant to section 1385, by striking one of defendants prior conviction allegations and sentencing defendant to a total prison term of 10 years. The sentence was based on the trial court (1) imposing the three‑year upper term for the possession of heroin; (2) doubling that upper term pursuant to section 667, subdivisions (d) and (e)(1) and section 1170.12, subdivisions (b) and (c)(1); and (3) adding four consecutive one‑year terms pursuant to section 667.5, subdivision (b), representing each of defendants four prior prison terms. Defendant appealed.

DISCUSSION

I.

Defendants Contentions of Error During Trial

Defendant contends (1) the trial court erred by excluding the hearsay statement of Alonzo to a police officer; (2) the prosecutor violated defendants constitutional rights by alluding to [defendant]s failure to testify and rebut the prosecutions case; and (3) the prosecutor engaged in misconduct by making factual arguments to the jury she knew to be false. We address each of defendants arguments in turn.

A.

The Trial Court Did Not Err by Excluding Alonzos Hearsay Statement.

Defense counsel sought to introduce evidence, through the testimony of the officers, that Alonzo stated, I have syringes in response to the officers question whether there was anything in the motel room that they should know about. The trial court asked defense counsel, [h]ow do you overcome a hearsay objection on her statement? After defense counsel argued that Alonzos statement qualified for the declaration against penal interest hearsay exception, the court asked, [d]ont you have to show [un]availability before you can admit that? Defense counsel responded, [n]o.

The court ruled that defendant had to show Alonzos unavailability under Evidence Code section 1230 in order for the statement to be admissible under that hearsay exception. The trial court stated, [r]ight now, any statements by Ms. Alonzo to the police would beany hearsay objection would be sustained. [] If you can educate me otherwise on that, or direct me to something else, then youd have to show unavailability, according to my reading of the Evidence Code. Observations of a police officer, as I stated, all thats admissible. Alonzo did not testify at trial; defendant neither presented evidence nor argued that Alonzo was unavailable to testify at trial.

Evidence Code section 1230 provides: Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true. (Italics added.) The trial court therefore correctly ruled that unless defendant made a showing that Alonzo was unavailable as a witness, her hearsay statement was not admissible as a declaration against penal interest. As discussed ante, defendant never attempted to make such a showing.

Defendants argument that the exclusion of Alonzos statement violated his federal and state constitutional rights is meritless. In United States v. Scheffer (1998) 523 U.S. 303, 308, the United States Supreme Court stated, [a] defendants right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. [Citations.] A defendants interest in presenting such evidence may thus bow to accommodate other legitimate interests in the criminal trial process. [Citations.] As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accuseds right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve. [Citations.] Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused. (Fn. omitted.)

The California Supreme Court in People v. Morrison (2004) 34 Cal.4th 698, 724‑725 stated, [a]lthough a trial court enjoys broad discretion in determining the relevance of evidence [citation], it lacks discretion to admit evidence that is irrelevant [citations] or excluded under constitutional or statutory law [citation]. The proponent of proffered testimony has the burden of establishing its relevance, and if the testimony is comprised of hearsay, the foundational requirements for its admissibility under an exception to the hearsay rule. [Citations.] Evidence is properly excluded when the proponent fails to make an adequate offer of proof regarding the relevance or admissibility of the evidence.

In People v. Morrison, supra, 34 Cal.4th 698, the defendant, who had been convicted of murder, robbery, burglary and two counts of attempted murder, unsuccessfully sought to introduce evidence during the penalty phase of his trial that showed alleged drug‑trafficking activity by the victims family and the presence of over $30,000 at the time and place of the crimes. (Id. at pp. 704, 720‑721.) The trial court excluded the evidence because it was irrelevant and because the majority of the proffered testimony was hearsay. (Id. at p. 723.) The defendant appealed, arguing the exclusion of the proffered evidence was error because, inter alia, it violated his federal constitutional rights to confrontation, and to put forward a defense and present evidence in mitigation. (Id. at p. 721.)

The California Supreme Court rejected the defendants argument, stating, [h]ere, defendants offers of proof . . . consisted largely of inadmissible third party hearsay. . . . [] Exclusion of the inadmissible hearsay at issue did not violate defendants constitutional rights. As we recently explained, the United States Supreme Court has never suggested that states are without power to formulate and apply reasonable foundational requirements for the admission of evidence. [Citations.] Foundational prerequisites are fundamental, of course, to any exception to the hearsay rule. [Citation.] Application of these ordinary rules of evidence to the alleged drug-related components of the proffered testimony did not impermissibly infringe on defendants right to present a defense. (People v. Morrison, supra, 34 Cal.4th at pp. 724‑725.)[2]

Defendant has not cited any legal authority, and we have found none, in which the enforcement of the unavailability requirement of Evidence Code section 1230 was found to infringe upon the federal or state constitutional rights of a criminal defendant. The unavailability requirement of Evidence Code section 1230 constitutes a reasonable foundational prerequisite for the admission of hearsay evidence, especially in this case where defendant neither attempted to satisfy such a requirement nor explained why he was unable to do so. The exclusion of Alonzos statement as inadmissible hearsay cannot be said to infringe[] upon a weighty interest of the accused. (United States v. Scheffer, supra, 523 U.S. at p. 308.)

Defendant cites Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers) in support of his argument that the trial court was constitutionally required to admit Alonzos statement notwithstanding its hearsay character. Chambers is inapposite. In Chambers, a defendant in a murder trial called a man as a witness who had previously confessed to the murder. (Id. at p. 294.) After the witness repudiated his confession on the stand, the defendant was denied permission to examine the witness as an adverse witness based on Mississippis voucher rule which barred parties from impeaching their own witnesses. (Id. at pp. 294-295.) In addition, Mississippi did not recognize an exception to the hearsay rule for statements made against penal interests, thus preventing the defendant from introducing evidence that the witness had made self‑incriminating statements to three other people. (Id. at pp. 297‑299.) The United States Supreme Court noted that the State of Mississippi had not attempted to defend or explain the rationale for the voucher rule. (Ibid.) The court held that the exclusion of this critical evidence, coupled with the States refusal to permit [the defendant] to cross-examine [the witness], denied him a trial in accord with traditional and fundamental standards of due process. (Id. at p. 302.) In United States v. Scheffer, supra, 523 U.S. at page 316, the United States Supreme Court stated its decision in Chambers was confined . . . to the facts and circumstances presented in that case.

In People v. Ayala (2000) 23 Cal.4th 225, 266, the California Supreme Court considered whether the defendant had either a constitutional or a state law right to present exculpatory but unreliable hearsay evidence that is not admissible under any statutory exception to the hearsay rule. Citing Chambers, the defendant in People v.Ayala, supra, 23 Cal.4th 225 argued the trial court had infringed on various constitutional guaranties when it barred the jury from hearing potentially exculpatory evidence. (Id. at p. 269.) The Supreme Court rejected the defendants argument, stating, [f]ew rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations.] [But i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. [Citation.] Thus, [a] defendant does not have a constitutional right to the admission of unreliable hearsay statements. [Citations.] Moreover, both we [citation] and the United States Supreme Court [citation] have explained that Chambers is closely tied to the facts and the Mississippi evidence law that it considered. Chambers is not authority for the result defendant urges here. (Ibid.)

Defendants citation to United States v. Boulware (9th Cir. 2004) 384 F.3d 794 is also inapt as it involved whether a state court judgment was admissible hearsay through an exception under the Federal Rules of Evidence. (United States v. Boulware, at pp. 807‑808.) The trial court erred by excluding the judgment because it was relevant and admissible through a hearsay exception established by the Federal Rules of Evidence. (United States v. Boulware, at pp. 807‑808.)

The trial court did not err by excluding Alonzos hearsay statement.

B.

The Prosecutor Did Not Violate Defendants Constitutional Right Against Self‑incrimination.

Defendant argues the prosecutor made statements which violated defendants right against self‑incrimination under the Fifth Amendment to the United States Constitution. He contends that in the closing argument the prosecutor improperly stated, [y]ou dont have any evidence that anybody else has been in that room. Defendant did not object to this statement during trial.

Defendant argues the prosecutor also improperly stated in the rebuttal argument that [t]heres no evidence that [defendant] has a job or a drivers license. He contends the prosecutors statements called attention to defendants failure to testify, [s]ince [defendant] would have been the only logical witness to testify as to his employment, having a drivers license and the presence of someone else in the motel room.

In Griffin v. California (1965) 380 U.S. 609 (Griffin), the United States Supreme Court held the prosecutor may not comment on a defendants failure to testify on his or her own behalf. The holding in Griffin does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses. (People v. Bradford (1997) 15 Cal.4th 1229, 1339.)

In People v. Bradford, supra, 15 Cal.4th at page 1338, the defendant argued the prosecutor committed Griffin error by noting the defendants failure to call any witnesses or produce any evidence pointing to his innocence. The prosecutor mentioned specifically the defendants failure to present an expert witness and alibi witnesses. (Id. at p. 1339.) The California Supreme Court rejected the claim of Griffin error because the prosecutors comments on the defendants failure to call witnesses or present evidence cannot fairly be interpreted as referring to defendants failure to testify. (Ibid.) The court stated, [n]either the general comment directed to the lack of defense evidence or testimony, nor the more particularized comments regarding the possibly bloodstained mat, the coroners opinion, or the absence of alibi for a particular time period, would have required defendant to take the stand. (Ibid.)

Here, with regard to the prosecutors comment on the lack of evidence showing anyone else had been in the motel room, defendant did not object to that comment at trial. In fact, defense counsel responded to the prosecutors comment in her closing argument, stating, [a]nd I again want to start with just, Im going to work with the room. Ill start with the room. [] The evidence that you saw today has all pointed to the fact that Stacy Alonzo, obviously, was staying there. We need not decide whether defendant waived this argument because that statement cannot fairly be described as referring to defendants failure to testify. First, whether defendant had been the only person to go into his motel room is not something that he would know exclusively. If someone else had been in his motel room, that person could have been called as a witness at trial. As suggested by defense counsel, Alonzo could have been called to testify on this issue. The record does not reveal why Alonzo did not testify. Motel employees or guests could have testified on this point as well. The prosecutors statement did not constitute Griffin error.

Second, whether defendant was employed or had a drivers license is not something within defendants exclusive knowledge that only he could testify about. Any employer or coworker could testify about defendants employment, and a representative from the Department of Motor Vehicles could testify about whether defendant had a drivers license.

But even if either of the prosecutors comments on the lack of evidence whether defendant was employed or had a drivers license was improper, it is established the prosecutor may in rebuttal make otherwise improper comments that are fairly responsive to defense counsels argument and are based on the record. (People v. Daya (1994) 29 Cal.App.4th 697, 715; People v. Roberts (1975) 51 Cal.App.3d 125, 136‑137.) Here, the prosecutors comments on the lack of evidence showing defendant was employed or had a drivers license responded to the following comment by defense counsel: And we already know its registered to [defendant]. I mean, the rooms registered to him, so okay. And theres the social security card there. But the logic that because his card is there he must have known about the presence of the heroin on the floor behind the nightstand or eight inches back is erroneous, and why is that? Because when we use our common sense, it would be a much stronger argument if it was an item found that we use a lot. [] For instance, if it was something that we take with us whenever we leave, say car keys. Okay. Thats something every time you come and go, you put your car keys in the same place, or you put [them] somewhere. That indicates that Ive been to that spot. [] A work badge, something, if maybe you work for a large company, maybe they make you wear an identification badge, you would need it fairly often, you put it in its place. You come back, and there it is: a drivers license, a full wallet, something like that. The prosecutors comments on the lack of evidence defendant was employed or had a drivers license responded to those comments by defense counsel. (People v. Daya, supra, 29 Cal.App.4th 697, 715; People v. Roberts, supra, 51 Cal.App.3d 125, 136‑137.)

We also note the jury was instructed with CALJIC No. 2.60 which states, [a] defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way. The jury was also given CALJIC No. 2.61, stating, [i]n deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against [him]. No lack of testimony on defendants part will make up for a failure of proof by the People so as to support a finding against [him] on any essential element.

The prosecutors statements did not violate defendants constitutional right against self‑incrimination.

C.

The Prosecutor Did Not Engage in Prosecutorial Misconduct.

Defendant argues the prosecutor engaged in misconduct by making factual statements in her closing argument she knew to be false. Citing People v. Bittaker (1989) 48 Cal.3d 1046, defendant asserts, it is improper for a prosecutor to mislead a jury into believing something the prosecutor knows is not true. In his opening brief, defendant states the prosecutor argued to the jury that it was unknown whose car [defendant] and Alonzo were standing by at the time they were detained, even though the prosecutor knew that the car had been rented by Alonzo. Defendant further contends the prosecutor argued that there was no evidence anyone other than [defendant] had been in the motel room, although the prosecutor was aware Alonzo had told the police that she had been staying with defendant in his motel room before the incident.

Defendant did not object to the prosecutors statements on this ground during trial. It does not follow that objecting to the prosecutors latter statement on a factual inaccuracy ground would have been futile solely because the trial court overruled defendants Griffin objection with regard to the same statement. Had defendant objected, the court could have cured any harm by admonishing the jury. Defendants argument, therefore, is waived. (People v. Earp (1999) 20 Cal.4th 826, 858.)

Even if defendants argument was not waived, the record shows the prosecutors statements were factually accurate. During cross-examination, a police officer, who had searched the car, testified he did not find any vehicle rental agreements inside the car or any documentation bearing defendants name. During defense counsels closing argument, she stated, then we get to the car, and it just even becomes more overwhelming in the car, which is not my clients car. Itsnothing in the car is connected to him at all. Theres no paperwork in his name. Theres nothing manly in the car, mens clothing. You heard no testimony of anything possibly connected to a man even being in the car. In rebuttal argument, the prosecutor stated, [d]efense [counsel] says its not his car. We dont know whose car it is. What we do know is he was by the car. . . . [] . . . Could he have gotten in the car? Absolutely. Could they have gone and partied in the car? Absolutely. Okay.

Defense counsel did not call Alonzo as a witness or otherwise present evidence showing to whom the car belonged. The prosecutor accurately commented that the evidence before the jury did not show one way or the other who the car belonged to, but that it did not matter to whom the car belonged. Even if the car was not defendants, the drug‑related items might still have been his.

Defendant also contends the prosecutor engaged in misconduct by falsely stating that no one else had been in defendants motel room. Defendant argues, [m]aking the prosecutors improper argument even more egregious is the fact that it was the district attorney who had moved to exclude evidence detailing Alonzos presence in the motel room.

During closing argument, the prosecutor stated, I believe Ive proved its his heroin, its his room, its by his stuff. Its in his control. Hes the one that rented the motel room. Theres no evidence other than some items in the room in a pile at one corner that anybody other than him has ever even had access to the room. And we dont even know that. [] Remember when we were talking about the evidence that you get is from the jury box. You dont have any evidence that anybody else has been in that room. Its rented to him.

Again, the prosecutor was factually correct in stating the jury was not given any evidence any person other than defendant had been inside his motel room. The prosecutor never affirmatively stated that no one other than defendant was ever inside that motel room. That the prosecutor might have known Alonzo had stayed in the room with defendant does not render the prosecutors comment on the state of the evidence on this point false.

Furthermore, the prosecutor never sought to exclude evidence that Alonzo, or any other person, had ever been in defendants motel room. Instead, the prosecutor sought the exclusion of inadmissible hearsay evidence at trial. During a pretrial hearing, the prosecutor raised the issue as follows: Unless the defendant takes the stand, or if she [Alonzo] takes the stand, or somebody that is associated takes the stand, the fact that they are married, who she is, why shes there, how long shes been there can only be established by hearsay. [] So I would ask the court to, unless the defense has an offer of proof how that information is going to be submitted that isnt in a hearsay fashion, that they be limited and not be allowed to talk about it in opening statement, and voir dire, and things like that. [] I dont intend to bring in my statements of hers or his regarding herin fact, I dont intend to bring any of his statements in. So the Peoples fear is if that information is introduced in opening statement, and/or in voir dire somehow, that that would be prejudicial to our case; when the only way it could be introduced is through hearsay by the defense, if theyre not going to call a witness.

Defendant did not offer any evidence showing that any other person had been in defendants motel room. As discussed ante, defense counsel stated her intention to introduce Alonzos statement to the police officers through an officers testimony; the trial court ruled the statement would not be admissible as a declaration against penal interest unless the defense showed Alonzos unavailability under Evidence Code section 1230. The prosecutor did not engage in misconduct.[3]

II.

Defendants Contentions of Sentencing Errors

Defendant contends (1) the trial court abused its discretion in refusing to dismiss both of defendants prior conviction allegations; (2) the trial court impermissibly imposed one‑year prior prison terms enhancements based on prior prison terms for each of which defendant had received an enhancement in connection with a prior conviction; and (3) the trial courts selection of the upper term violated defendants federal constitutional rights to a jury trial and proof beyond a reasonable doubt.

A.

The Trial Court Did Not Abuse Its Discretion in Refusing to Dismiss Defendants Prior Serious and Violent Felony Convictions.

The trial court struck one of defendants two prior conviction allegations at the sentencing hearing. Defendant contends the court abused its discretion by failing to strike both prior conviction allegations pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. We review the trial courts refusal to strike defendants second prior conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.)

In determining whether to strike a prior conviction, the California Supreme Court has stated, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Carmony, supra, 33 Cal.4th at p. 377.)

In reviewing whether the trial courts ruling abused its discretion, we are guided by two fundamental precepts. First, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.] Second, a decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony, supra, 33 Cal.4th at pp. 376‑377.)

The Supreme Court further stated, [i]n light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss . . . , or where the court considered impermissible factors in declining to dismiss . . . . Moreover, the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an arbitrary, capricious or patently absurd result under the specific facts of a particular case. (People v. Carmony, supra, 33 Cal.4th at p. 378, citations omitted, original brackets.)

Here, in determining whether to strike the prior conviction allegations, the record shows the trial court read and considered defendants invitation to strike his prior conviction allegations and the prosecutions opposition, the probation and sentencing report, letters written to the court by defendants family members, documents submitted to the court by defendant, and photographs of defendant. In addition, defendant was permitted to address the court. The court also heard oral argument from defense counsel and the prosecutor.

The record shows the trial court considered the nature and circumstances of the charged offense and the prior convictions, defendants background, character and prospects, and whether defendant should be deemed outside the statutory schemes spirit. The court noted defendants recidivism and failure to overcome his addiction to illegal drugs.

The court noted defendant had only been out of prison one month before the instant offense and had admitted to using heroin shortly after his release. The trial court referred to statements in the probation and sentencing report that defendant had taken no responsibility for his actions, had failed to take advantage of earlier opportunities to receive drug rehabilitation services, and told a parole agent that he resented the law and felt drug use should not be a crime. The court commented that the probation and sentencing report is one of the worst probation reports in terms of comments from a parole or probation officer that Ive seen in a long time on those issues. [] You are not giving me much ammunition which to show you Romero consideration. (Italics added.) The trial court also expressed concern that defendant had a prior conviction allegation struck in an earlier case.

On the other hand, the trial court acknowledged defendant had some good qualities, a supportive family, and a young daughter he cared about. The trial court agreed the charged crime was for simple possession for personal use with no indicia of sales and further noted defendants record did not reflect acts of violence or an escalating pattern of criminality. The court concluded that it would strike one of the prior conviction allegations because not to would cause a severe, unreasonable and disproportionate detriment to the defendant when taken into consideration with the factors previously mentioned.

On this record, we cannot conclude the trial court abused its discretion by refusing to strike both prior conviction allegations.

B.

The Trial Courts Imposition of Prior Prison Term Enhancements Under Section 677.5, Subdivision (b) Did Not Violate Constitutional Prohibitions Against Double Jeopardy or the Provisions of Section 654 or 1023.

Defendant contends that of the four prior prison terms for each of which a one‑year enhancements term was imposed, two or three of the prior prison terms had previously been alleged in an earlier conviction, each resulting in the imposition of a one-year enhancement term. Defendant argues, [h]aving once been subject to the one-year added penalty mandated by section 667.5, subdivision (b), [defendant] was protected by the double jeopardy clause from being again punished for failing to remain free of a felony conviction during these same five-year periods. By again imposing three, one-year enhancements for failing to remain felony and incarceration-free for a five-year period, the trial court effectively subjected [defendant] to multiple punishment for the same conduct . . . [in] violation of the proscription against multiple punishments embodied in the federal and state double jeopardy provisions. For the same reason, defendant contends the trial courts imposition of the prior prison term enhancements violates sections 654 and 1023,[4] both of which embody the double jeopardy principles . . . and bar the repeated imposition of section 667.5[, subdivision ](b) enhancements in subsequent proceedings.

Defendant does not cite any legal authority and we have found none supporting his argument. Section 667.5, subdivision (b) provides: Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.

Section 667.5 provides for the [e]nhancement of prison terms for new offenses because of prior prison terms. (Italics added.) The additional terms of incarceration set forth in section 667.5 do not constitute punishment for offenses; rather, these terms are designed to enhance a current offenders sentence in light of his or her history of recidivism. (See People v. Fielder (2004) 114 Cal.App.4th 1221, 1232 [legislative intent behind section 667.5, subdivision (b) was to impose additional punishment upon a felon whose prior prison term failed to deter him or her from future criminal conduct]; see also In re Panos (1981) 125 Cal.App.3d 1038, 1041 [section 667.5, subdivision (b) designed to provide an additional punishment component for prior imprisoned recidivist offenders].)

Although not specifically referring to section 667.5, subdivision (b), the United States Supreme Court in Witte v. United States (1995) 515 U.S. 389, 400 stated, [i]n repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.

The trial courts sentence violates neither constitutional nor statutory provisions.

C.

In Light of Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], We Remand for Resentencing.

Citing Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], defendant argues defendants upper term sentence, which was imposed based on facts determined by the trial court, violated his constitutional rights to due process and a jury trial. The United States Supreme Court has held Californias determinate sentencing law violates a defendants rights under the Sixth and Fourteenth Amendments to the United States Constitution to a jury trial to the extent it permits a trial court to impose an upper term sentence based on facts found by the court instead of by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. __ [127 S.Ct. 856].) Both parties briefed the issues raised by Cunningham and waived oral argument on these issues.

Here, the trial court imposed the upper term sentence, citing several aggravating factors relating to defendant. (Cal. Rules of Court, rule 4.421(b)(2) [defendants prior convictions are numerous]; rule 4.421(b)(3) [defendant has served a prior prison term]; rule 4.421(b)(4) [defendant was on parole at the time the crime was committed]; and rule 4.421(b)(5) [defendants prior performance on parole was unsatisfactory].) The issue whether Cunningham, supra, 549 U.S. __ [127 S.Ct. 856] permits a trial court to sentence a defendant to the upper term based on the courts findings pertaining to any or all of, in essence, the same four factors involved in this case, without submitting them to a jury, is presently pending before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.

Because the trial court here imposed an upper term sentence based on several aggravating factors that were not tried to and found by a jury, in light of Cunningham, supra, 549 U.S. [127 S.Ct. 856], we remand for resentencing.

DISPOSITION

The judgment is affirmed and remanded for resentencing.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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[1] This fact summary is based on trial testimony.

[2] The Supreme Court in People v. Morrison, supra, 34 Cal.4th 698, 725, further stated, it has been recognized that due process requires the admission of hearsay evidence at the penalty phase of a capital trial, even though a states evidentiary rules are to the contrary, if both of the following conditions are present: (1) the excluded testimony is highly relevant to a critical issue in the punishment phase of trial, and (2) there are substantial reasons to assume the reliability of the evidence. The Supreme Court concluded in People v. Morrison that there appear no reasons, substantial or otherwise, supporting the reliability of the proffered evidence in that case. (Ibid.) In his reply brief, defendant quotes Green v. Georgia (1979) 442 U.S. 95, 97 for the proposition that [r]egardless of whether the proffered testimony comes within Georgias hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, [citations], and substantial reasons existed to assume its reliability. Green v. Georgia is inapplicable to this case because like People v. Morrison, it involved the admission of hearsay in the penalty phase of a capital trial. (See People v. Williams (2006) 40 Cal.4th 287, 293.)

[3] At oral argument, defendants appellate counsel cited People v. Woods (2006) 146 Cal.App.4th 106 in support of defendants argument that he was prejudiced by the prosecutors alleged misconduct. We do not reach defendants argument regarding prejudice because we have concluded, as discussed ante, the prosecutor did not engage in misconduct.

[4] Section 654, subdivision (a) provides, [a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. Section 1023 provides, [w]hen the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.