P. v. Vasquez

Filed 4/25/07 P. v. Vasquez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

An information charged defendants Juan Carlos Posadas and Maurice A. Vasquez with one count of kidnapping (Pen. Code, 207, subd. (a))[1] and alleged that each had personally used a firearm in the commission of that offense ( 12022.53, subd. (b)). In addition, both defendants were charged with possession of a firearm by a felon ( 12021, subd. (a)(1)) and Posadas was charged with attempting to dissuade a witness ( 136.1, subd. (a)). Defendants admitted the prior conviction allegations contained in the information. Posadas, who had a prior strike conviction ( 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction ( 667, subd. (a)), was sentenced to 25 years in prison. The court sentenced Vasquez, who had one prison prior ( 667.5, subd. (b)), to 19 years in prison.

On appeal, defendants jointly argue that the prosecutor committed misconduct and that the trial court made erroneous evidentiary rulings. Posadas claims that the court erred by rejecting his new trial motion and Vasquez argues that the court erred under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington(2004) 542 U.S. 296 (Blakely) by sentencing him to the aggravated term for the kidnapping. By way of petitions for habeas corpus, both defendants claim that their attorneys provided ineffective assistance of counsel. We have previously ordered the matters considered together for the purpose of briefing, oral argument, and decision. For reasons we shall explain, we affirm the judgments and deny the writ petitions.

I.                   Background

A.     Introduction

The jury found defendants guilty of kidnapping Guillermo Velasquez (Victim). Victims story was that defendants had stopped him on the road, forced him at gunpoint out of his car, bound his hands, and then forced him into their car and drove away. During the short drive that followed, Posadas held a gun pointed at Victims rib cage and told him he wanted him to cooperate. Before they had driven very far the car got stuck in the mud. Defendants ordered Victim out of the car and he managed to escape by running away through an orchard where he encountered a husband and wife at their residence and prevailed upon them to call 911. Victim claimed he had no idea why Posadas and Vasquez had kidnapped him.

The prosecutions theory revolved around the fact that Posadas was a confidential informant for the Bureau of Narcotics Enforcement (BNE). The prosecution argued that Posadas was afraid that Victim had discovered he was an informant and, therefore, Posadas and Vasquez planned to kill him so that he would not reveal that Posadas was an informant. The defense argued that Victim was a drug dealer who had got into the car to negotiate a drug deal, that he was the one with the gun, and that when the car got stuck he ran away and made up the story about the kidnapping.

B.     The Prosecutions Case

Victim was the prosecutions first witness. He testified through a Spanish language interpreter. Victim testified that he had met Posadas, whom he knew as Shorty, while the two were in jail in 2000. Victim was then serving a six-month sentence for perjury. After his release, Victim worked for Posadass uncle for a few months doing landscaping. Victim had met Posadas on a few other occasions, as well.

Posadas was a confidential informant working with BNE agents Eduard Heredia and Mitchell Fox. Posadas had an extensive knowledge of the world of narcotics and methamphetamine. He first began supplying information to BNE in order to work off a criminal case. Thereafter, he continued to supply information for cash. Heredia and Fox considered Posadas to be a reliable informant. On about eight to 10 occasions they had obtained search warrants in response to information Posadas had given them. On each occasion the agents uncovered large quantities of illegal drugs, mostly methamphetamine. Altogether, Posadass tips led to the discovery and seizure of hundreds upon hundreds of pounds of methamphetamine. By the time of the incidents alleged in this case the BNE had paid Posadas about $30,000 for his information.

Posadas did not work under the direction of the BNE agents but tended to work on his own, gathering information. The BNE never authorized him to buy or sell drugs in order to obtain information. If Posadas had engaged in any such transactions, it was without the knowledge of the BNE and would have subjected him to criminal penalties had his conduct been discovered by law enforcement. It was understood that the informants identity was to remain confidential to protect both the integrity of the criminal investigations and the safety of the informant.

In or about 2001, Posadas told Heredia and Fox that Victim was distributing methamphetamine and was planning to manufacture it at the trailer in which he lived in a remote area of Morgan Hill. BNE investigated and learned that Victim associated with or was related to persons known to be involved in the manufacture or sale of methamphetamine. The agents also observed Victims trailer and determined that it was located in a logical spot for setting up a clandestine methamphetamine laboratory.

In early 2003, Posadas and Victim drove to Fremont to meet with Posadass father about landscaping work for Victim. While they were stopped a short way from their destination, a law enforcement officer approached them and searched them for narcotics. The anticipated meeting with Posadass father never took place.

According to his testimony at the preliminary hearing, Victims contacts with Posadas had mostly involved either the effort to obtain work or Posadass interest in buying one of the goats Victim tended at the property where the trailer was located. Victim later recalled that shortly after the trip to Fremont, he had called Posadas to try and sell him his truck. Victim claimed that he wanted to buy a taco truck and that he needed to sell his pickup truck to pay for it. Victim made about 40 calls to Posadas for this purpose, 29 of those calls were made in one day on February 20, 2003.

On February 27, 2003, agent Fox and a team of law enforcement officers executed a search warrant for Victims trailer. They uncovered nothing other than some old marijuana that Victims aging uncle used to make a potion to rub on his joints. There was no methamphetamine and nothing to suggest that the trailer had been or was being prepared to be a methamphetamine laboratory. This was the first time Heredia and Fox had obtained a search warrant based upon a tip from Posadas and had not found what they were looking for.

On March 15, 2003, 16 days after the fruitless search of Victims trailer, Victim was returning home around 6:00 or 7:00 p.m. when he saw defendants car coming toward him. Defendants stopped their car and waved at Victim to stop, which he did. Defendants got out of their car and told Victim to come with them. Victim refused and defendants each took out a gun. Posadas told Victim that Vasquez was with law enforcement. Posadas reached in, turned off Victims truck, and took the keys out of the ignition. Victim exited his truck and was told to get down on his knees. Vasquez removed Victims belt and bound Victims hands behind him with the belt. Defendants then ordered Victim into their car and they drove off. Victims cell phone was left behind in his truck. Victim was in the back seat with Posadas, who held a gun to Victims ribs. Posadas told him he wanted him to cooperate. He asked Victim why he was so scared and told him he would not be the first person he had killed.

Vasquez, who was driving, missed the ramp to the freeway and, while attempting to make a U-turn on the road that runs behind Live Oak High School, drove the car into a ditch where it got stuck. Just before getting stuck, defendants had thrown Corona beer bottles out of the car. With the car in the ditch, the trio got out and Vasquez ordered Victim to go stand by the orchard on the side of the road opposite the high school. Victim backed away toward the orchard, working his hands free of the belt as he walked. About this time a passing car had stopped by the stranded vehicle. Vasquez tucked his gun into his waistband. When he turned away from where Victim was now standing, Victim turned and ran into the orchard, by now holding his belt in his hands.

Victim soon came to a trailer where Maria Yaez was just driving up in a car. Mrs. Yaez testified that Victim had a belt in his hands. He told her that three men were chasing him with guns and asked her to call the police. She was afraid and told Victim to go talk to her husband. Jose Yaez first thought that Victim was drunk or on drugs but soon he understood that he was just really, really frightened. He stood in the bushes frightened and crying. Mr. Yaez instructed his wife to call the police and then gave the phone to Victim. Victim reported that men were chasing him with guns.

Around the same time, Police Officer Andrew Jackson was patrolling the area around Live Oak High School when he came upon the stranded car and a truck with a winch attempting to pull the car out of the ditch. Vasquez was standing to one side speaking on a cell phone. Posadas was pacing back and forth. As Jackson was speaking with the two men a call came over his two-way radio alerting him (and defendants) to the report of a victim being chased by persons with guns. The description of the suspects and their car matched defendants and the vehicle in the ditch. Defendants denied any involvement. Posadas produced a fraudulent drivers license and murmured that he was a BNE agent. Jackson did not know what he was talking about but he could tell Posadas urgently wanted to get the information across to him.

Meanwhile, Sheriffs Deputy Jose Zuniga responded to the call from the Yaez residence. He found Victim shaking, scared. He kept repeating, Theyre going to get me; theyre going to get me. Zuniga transported Victim to where the car was stranded and Victim identified defendants as his abductors. Jackson observed that Victim had light red linear abrasions on the outside of his wrists and scuff marks on the inside.

Defendants were taken into custody. A search of the area revealed a Colt .45 semiautomatic handgun in an inside the pants holster wedged in the fork of a tree in the orchard. The gun was loaded with a live round in the firing chamber and an extra magazine stored in the holster. When one officer announced that he had found the gun, another officer observed that defendants slumped in their seats and slumped their heads and waved their heads. Prior to that they had been very casual, almost nonchalant. Three full bottles of beer were found placed along the fence line by the school grounds across the street from the orchard. Victims keys were on the console in the front seat of defendants car. His pickup truck was still parked on the side of the road leading to his trailer. No other gun was found. Police activated a recording system in the police vehicle in which defendants had been placed. The tape picked up the sound of defendants whispering to each other but much of the tape was unintelligible.

C.     The Defense Case

Posadas did not testify at trial; Vasquez did. Vasquez testified that he ran an escort service and had arranged for some girls to meet with Posadas and Victim on the night of March 15, 2003, around 7:00 p.m. Vasquez and Posadas drove to Victims trailer and when he was not there they turned around and were driving away when they saw his pickup truck approaching. They all stopped. Victim left his truck and got into the car in the front seat and threw his keys on the console. Victim and Posadas talked together in Spanish. Vasquez could only understand a little bit of what they said but he did understand Posadas to ask, [W]hy do you only have two ounces to which Victim responded, later and I want to see some money. Vasquez identified the Colt .45 holster as the holster Victim had been wearing that night.

According to Vasquez, when the car got stuck in the ditch, Victim got out, grabbed three beer bottles, walked across the street to the fence, and looked around. Then he walked back across the street to the side where the orchard was. Meanwhile, a passerby had stopped to help and, after sizing up the situation, left to get a friend who had a truck with a winch. When the person returned and Vasquez began talking with him, Victim looked agitated and then just darted off.

Rebecca Serrato, one of Vasquezs girlfriends, testified that she and two friends had planned to meet Vasquez and two of his friends at a hotel in San Martin, California, on the night the alleged kidnapping took place. She was not sure of the exact time they were supposed to meet but it was [b]etween 7:00 or something like that. Serrato had not yet left Sacramento when she learned that meeting would not take place. Serrato admitted to being close to Vasquez and having visited him many times in jail. The most recent visit was just two days before her testimony.

II.                Issues on Appeal

1. Does the prosecutors improper question to Vasquez warrant reversal?

2. Did the trial court abuse its discretion in excluding evidence that Victim had negotiated the sale of a large quantity of cocaine in 1993?

3. Did the trial court abuse its discretion in excluding evidence that Victim had falsified a social security application in 1989?

4. Did the trial court abuse its discretion in denying Posadass motion for a new trial based upon newly discovered evidence?

5. Did the trial court violate Blakely, supra, 542 U.S. 296 by sentencing Vasquez to the aggravated term?

III.             Discussion

A.     Permitting Evidence of Vasquezs Statement to Posadas

1.      Background

At the very end of the evidence phase of the trial, the prosecutor asked Vasquez a series of questions concerning his conversation with Posadas in the back of the police cruiser on the night of their arrest. The prosecutor did not seek to admit the tape or the transcript of that conversation but cross-examined Vasquez based upon the transcript. Vasquez admitted saying to Posadas, What the fuck did this mother fucker run for and I think they think that gun was ours and other comments that were not particularly incriminating. The prosecutor followed this line of questioning with this question: When you were in the proximity of Mr. Posadas, at some point you said, If I get out on Friday, the victims dead on Sunday; is that correct? Defendants objected to the question and the court sustained the objection at this time.

The statement the prosecutor attributed to Vasquez was not taken from his taped conversation with Posadas. Rather, Deputy District Attorney Vonda L. Tracey had filed a declaration in connection with a bail hearing, which stated: On March 19, two California Department of Justice Agents contacted me. They informed me that they had visited Defendant Posadas in jail on an unrelated case. During their conversation, Posadas relayed that his Codefendant, Vasquez, had stated that if he (Vasquez) gets out on Friday, [the victim] wont be around by Sunday. The agents to whom the declaration referred were presumed to be Heredia and Fox.

The admissibility of the statement had been raised during in limine motions. The court noted then that the issue was moot unless defendant chooses to testify. . . . [] So the Courts ruling is that no mention be made of these, obviously in opening statement or at any other time unless the defendant testifies. Should the defendant testify and [the prosecutor] determines that he believes that this evidence is now relevant and admissible, hell notify the Court first and then well deal with the [Evidence Code section] 402 hearings.

Following defendants objection to the question, the matter was discussed out of the presence of the jury and an Evidence Code section 402 hearing was held in which Vasquez denied having made the statement. The prosecutor acknowledged that he could not prove the contrary without violating Posadass confrontation rights. The trial court concluded that even though the statement involved multiple levels of hearsay, the prosecutor seemed to have a reasonable basis for it. The court allowed the question so long as the prosecutor avoided mentioning Posadas by name.

When the jury returned, the prosecutor asked Vasquez whether he had realized that it was Victim who had accused him of a crime. Vasquez admitted that he had and that he had been angry about that. He also admitted whispering about Victim to Posadas as they sat in the back of the patrol car. The prosecutor then asked, At any point had you ever said that if you get out of jail on Friday, the victim would not be around by Sunday. Vasquez denied having made the statement and the prosecutor terminated his cross-examination. After four brief questions from defense counsel, the evidence phase concluded.

2.      Contentions

Defendants argue that the prosecutor committed misconduct by asking the first question without notifying the trial court and that the trial court erred in ultimately allowing the prosecutor to ask the question a second time. The Attorney General concedes that the question was improper. In light of that concession, the question before us is whether the error was prejudicial. Defendants maintain that the error violated their Sixth Amendment right to confront witnesses against them and urge application of Chapman v. California (1967) 386 U.S. 18, 24, requiring us to reverse unless we find the error was harmless beyond a reasonable doubt. The Attorney General argues that the error was merely an improper evidentiary ruling and, therefore, subject to the less stringent harmless error rule of People v. Watson (1956) 46 Cal.2d 818, 836.

3.      Analysis

The prosecutor managed to put two versions of the statement before the jury. First he asked, When you were in the proximity of Mr. Posadas, at some point you said, If I get out on Friday, the victims dead on Sunday; is that correct? After the sidebar discussion with the trial court, the prosecutor rephrased the question as, At any point had you ever said that if you get out of jail on Friday, the victim would not be around by Sunday. Either version was improper. The question implied the existence of a harmful fact that the prosecutor was unable to prove. (See People v. Lo Cigno (1961) 193 Cal.App.2d 360, 388.) Such improper questions are designed not to obtain information or test adverse testimony but to afford cross-examining counsel a device by which his own unsworn statements can reach the ears of the jury and be accepted by them as proof, a tactic which has been repeatedly condemned. (Love v. Wolf (1964) 226 Cal.App.2d 378, 390.) Furthermore, the prosecutor asked the first question in violation of the trial courts in limine ruling. That was clearly misconduct. A prosecutor who improperly cross-examines a defendant in order to place inadmissible prejudicial evidence before the jury is guilty of misconduct. [Citations.] Improper questions that violate a previous ruling by the trial court are particularly inexcusable. (People v. Johnson (1978) 77 Cal.App.3d 866, 873-874.) The trial court compounded the error by permitting the revised version after learning that Vasquez denied making the statement and that the prosecutor could not offer evidence to prove that he had.

There is no fixed rule for harmless error review in cases like this. If the error is deemed a violation of defendants Sixth Amendment rights, Chapman would apply. In Douglas v. Alabama (1965) 380 U.S. 415, the United States Supreme Court recognized that a prosecutors attempt to get before a jury information not properly admissible as evidence may violate a defendants rights under the confrontation clause of the Sixth Amendment. In Douglas,an accomplice was called as a witness at trial. The prosecutor read aloud portions of the accomplices alleged confession and paused repeatedly to inquire whether the accomplice had so stated. The accomplice refused to answer any questions, asserting his Fifth Amendment privilege. The Supreme Court reversed Douglass conviction, holding that the prosecutors manner of presenting the accomplices confession deprived Douglas of his constitutional right to confront and cross-examine the accomplice as to the accuracy of his alleged confession. (Id. at pp. 419-420.) The court recognized that the prosecutors reading of the alleged statement was not technically testimony but that the tactic may well have been the equivalent in the jurys mind of testimony that [the accomplice] in fact made the statement. (Id. at p. 419.)

People v. Blackington (1985) 167 Cal.App.3d 1216, involved the joint trial of two defendants, Eldred and Blackington. Eldred, who had given a lengthy, post-arrest statement to the police, did not take the stand at trial. Nevertheless, the prosecutor managed to reveal parts of Eldreds statement by repeatedly referring to a copy of the statement during his cross-examination of Blackington. The prosecutor asked Blackington whether he had said certain things to Eldred that discredited Blackingtons self-defense theory. (Id. at p. 1220.) For example, the prosecutor asked: You never told [Eldred], Dont worry. Just get him outside, and I will take care of him at that point. (Id. at p. 1220, fn. 6.) The prosecutor interspersed such statements, either quoted or paraphrased in the leading questions he asked of Blackington. (Id. at p. 1220.) In Blackingtons appeal, the appellate court reversed. Blackington, the clear target of the incriminatory inferences to be drawn from the statements, was by virtue of the prosecutors conduct deprived of his right to confront and cross-examine his accuser, Eldred. (Id. at p. 1224.)

Blackington applied the Chapman standard but emphasized that the facts of the case did not call for deciding whether a prosecutors single question, the substance of which may have been suggested by an inadmissible extrajudicial statement, necessarily constitutes misconduct or violates a defendants right of confrontation. (People v. Blackington, supra,167 Cal.App.3d at p. 1223, fn. 10.) The court explained that its conclusion relied upon an amalgam of circumstances: the repeated questioning by the prosecutor; his physical reference to Eldreds statement which made it clear his questions included quoted material; and the prosecutors implied reference to the inadmissible statements in closing argument. (Ibid.)

In People v. Bell (1989) 49 Cal.3d 502, 531, the prosecutor asked an improper question of the defendants expert: And I take it that you considered the [police] report . . . where the witness said that suspect had been observed in possession of a small-barreled gun and was cleaning the weapon the day before the crime. (Id. at pp. 531-532.) The defendant argued that this misconduct was subject to Chapman because the prosecutor put before the jury the hearsay statement of a person who was not available for cross-examination and the statement suggested that defendant had been cleaning the murder weapon on the eve of the crime. The court noted that there was some support for the argument in Douglas v. Alabama, supra,380 U.S. at page 419, which involved the egregious circumstances we have described above. The court then compared Douglas to Donnelly v. DeChristoforo (1974) 416 U.S. 637, where the United States Supreme Court recognized that prosecutorial misconduct that puts evidence before a jury may deny the right of confrontation, but declined to treat a prosecutors improper argument as a constitutional problem. As stated by DeChristoforo: [N]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a failure to observe that fundamental fairness essential to the very concept of justice. (Id. at p. 642.) Rejecting a Sixth Amendment claim the court said that the defendant suggest[s] that the prosecutors statements may have deprived him of the right to confrontation. [Citation.] But this argument is without merit, for the prosecutor here simply stated his own opinions and introduced no statements made by persons unavailable for questioning at trial. (Id. at p. 643, fn. 15.) Belldeclined to decide which standard was appropriate because, even under the more rigorous Chapman rule, the court found the error was harmless. (People v. Bell, supra,49 Cal.3d at p. 534.)

Here the challenged question exposed a statement that was allegedly made by Vasquez, who testified and denied that he made it. The prosecutor, therefore, did not directly put before the jury the statement of a person unavailable for questioning at trial. Arguably, Vasquez was deprived of the right to cross-examine Posadas, who allegedly reported the statement to Heredia and Fox. But like the court in People v. Bell,we need not resolve the question because even under Chapman, we find the error was harmless.

We recognize that the case essentially came down to a credibility contest between Vasquez and Victim. But there was very little evidence to corroborate Vasquezs version. There was the fact that only one gun was found rather than two. There were the three unopened beer bottles found on the side of the road where Vasquez said Victim had taken them. And there was the testimony of Serrato that she and her friends were to meet up with the men in San Martin. The other evidence tends to support the prosecutions version: Victims truck was left at the side of the road with his cell phone still in it, suggesting the meeting had not been planned. Victim had minor abrasions and scuff marks on his wrists consistent with their having been bound. And three witnesses described Victim pleading for help and shaking and crying with fear, which independently supported Victims tale of being kidnapped and threatened with a gun. On balance, therefore, the evidence tends to favor the prosecutions version.

It is not solely the state of the evidence, however, that convinces us the error was harmless beyond a reasonable doubt. We also note that defendants point to no other instances of misconduct, the prosecutor did not refer to the statement during his argument to the jury, and the trial court twice instructed the jury that [s]tatements made by attorneys during the trial are not evidence and [d]o not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer. Indeed, Vasquez denied the statement, under oath, and his denial was in evidence, the statement was not. We presume the jury obeyed the trial courts instruction that questions posed by the attorneys are not evidence. (People v. Hinton (2006) 37 Cal.4th 839, 864.) Defense counsel insured that the jury understood the instruction when, in closing argument, counsel explained that it was specifically put in there for the one question, I think, that [the prosecutor] asked. I mean it applies to the whole case. Mr. Vasquez, did you ever say that if you got out on Friday that [Victim] wouldnt be around on the Sunday?

No, I never said anything like that. Right?

So how does that end up? Zero. Did [the prosecutor] come in here with an officer or anybody that says that Mr. Vasquez said that? No. Thats what this instruction is all about. Counsels argument correctly explained the relevant law. (People v. Kelly (1992) 1 Cal.4th 495, 526.)

Finally, neither version of the statement that the prosecutor attempted to attribute to Vasquez was an unequivocal confession. The statement could certainly be interpreted as expressing Vasquezs original intent to kill Victim. On the other hand, the context of the prosecutors questions implied that Vasquez had made the statement while sitting in the patrol car with Posadas after learning that Victim had accused him of a crime. Thus, an equally plausible interpretation of the alleged statement is that Vasquez made the statement out of anger about Victims falsely accusing him. It follows that, if the jury considered either statement at all, the jurys view of the evidence would have colored its interpretation of the statement, not the other way around. In sum, exposing the jury to the alleged statement did not affect the result.

B.     Excluding Evidence of the Sale of a Large Amount of Drugs

Victim had previously been charged with a Health and Safety Code violation that carried an enhancement for conspiring to sell more than one kilogram of cocaine base. (Health & Saf. Code, 11370.4, subd. (a).) At a preliminary hearing in 1994, BNE investigating officer, Randolph Blum, testified that he met Victim at an auto body shop on March 17, 1993, to arrange the purchase of two kilograms of cocaine at $17,000 per kilogram and also to buy Victims Ford Mustang. According to Blum, Victim agreed to sell the cocaine on a specified future date. Victim produced 0.55 grams of cocaine and gave it to the informant who was acting as a translator. Indeed, the entire conversation between Victim and Blum was conducted through a confidential BNE informant. Blum spoke a little Spanish and understood the words cocaine, sale, and the weight under discussion. At the close of the preliminary hearing, the magistrate refused to order the prosecution to identify the informant. The charges against Victim were eventually dismissed.

Defendants wanted to introduce the transcript of the 1994 preliminary hearing to impeach Victim at trial and also to show that Victim was involved with a drug-trafficking organization. Blum was in Iraq and unavailable to testify. The prosecution objected to the evidence, arguing, among other things, that the interpreters statements to Blum added a layer of hearsay. The trial court conducted an Evidence Code section 402 hearing at which Victim testified that he was once involved with drugs, something like that. He admitted giving cocaine to someone. A person named Joe who worked at the auto body shop was interpreting for him. Victim did not remember if he gave the cocaine to Joe or to the other guy. Victim got the cocaine from his uncle, Valencia Guadalupe, who instructed him to give it to this other person.

The trial court permitted the defense to ask Victim if he had given cocaine to a person in 1993 but refused to allow the preliminary hearing transcript into evidence, finding it contained no foundation for the skill or reliability of the interpreter. The court also reasoned that the evidence was unduly time-consuming, prejudicial, misleading--not prejudicial, but confusing to the jury and perhaps misleading them as to what the issue is that theyre supposed to decide. Defendants argue that the ruling was error. We disagree.

The trial court enjoys broad discretion in determining whether Evidence Code section 352 allows for exclusion of impeachment evidence. (People v. Wheeler (1992) 4 Cal.4th 284, 296 (Wheeler).) Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.) As the Supreme Court explained in Wheeler,Proposition 8s Truth-in-Evidence amendment to the Constitution (Cal. Const., art. I, 28, subd. (d)) (section 28(d)), did not eliminate the trial courts discretion to exclude impeachment evidence under Evidence Code section 352. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. By expressly preserving this authority, section 28(d) makes clear the voters determination to prevent such consequences. (Wheeler, supra,4 Cal.4th at p. 296.) Wheeler explained, When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor--or any other conduct not amounting to a felony--is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value. (Id. at pp. 296-297.)

Correa v. Superior Court (2002) 27 Cal.4th 444, 459, held that a translated statement may be attributed to the declarant without adding an additional layer of hearsay if the statement conforms to particular standards. As Correa explained, a generally unbiased and adequately skilled translator simply serves as a language conduit, so that the translated statement is considered to be the statement of the original declarant, and not that of the translator. (Id. at p. 448.) The case-by-case evaluation requires assessment of a number of factors which may be relevant in determining whether the interpreters statements should be attributed to the [declarant] . . . , such as which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreters qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated. (Id. at p. 458, quoting U.S. v. Nazemian (9th Cir. 1991) 948 F.2d 522, 527.)

In the present case, the interpreters reliability was not evaluated at the preliminary hearing. The interpreter did not testify and there was no inquiry into his language ability, his relationship with Victim, or the circumstances surrounding his involvement in the case. Thus, the trial court had no way to evaluate whether the interpreter could be considered simply a language conduit. Furthermore, the trial court was reasonably concerned about confusing the issues. The excluded evidence coincidentally involved another BNE confidential informant who served as an interpreter for Victim. Victim had not been convicted of any crime related to the alleged transaction and there was no other corroboration of the facts the evidence was designed to prove. Thus, the jury could well have focused upon issues relating to the informant or wondered why no evidence of a conviction was ever produced. Thus, even if the transcript was technically admissible under Correa,the trial court properly excluded it under Evidence Code section 352.

Defendants argue that the trial courts ruling denied them their confrontation and due process rights. According to Posadas, the courts ruling so restricted his right to cross-examination and impeachment of Victim that the jury was given a significantly different impression of [the witness] credibility. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) We disagree. [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. (People v. Harris (1989) 47 Cal.3d 1047, 1091, quoting Delaware v. Van Arsdall, supra,475 U.S. at p. 679; see also People v. Jennings (1991) 53 Cal.3d 334, 372.)

The evidence in question was not such that its exclusion significantly altered the jurys view of the witness. The trial court permitted evidence that Victim had been involved in illegal drug activity. The BNE officer testified that Victim was known to be associated with persons involved with the manufacture or sale of methamphetamine, the court allowed defendants to ask Victim about furnishing cocaine to someone in 1993, Victim admitted to having been involved with drugs, and the court allowed evidence of Victims recent perjury conviction. Thus, the jury was not deprived of evidence to show that Victim could have been involved in large drug sales or of evidence to impeach his credibility. Evidence of the alleged size of the 1993 transaction would not have provided a significantly different impression of the witness.

C.     Excluding Evidence of Victims False Social Security Application

A probation report revealed an unadjudicated offense from 1989 in which Victim was accused of obtaining a Social Security card by giving false information. The information had not been disclosed in discovery and the defense sought to introduce it as soon as it was discovered. The trial court determined that the offense was one of moral turpitude but excluded it under Evidence Code section 352. The trial court had allowed the defense to impeach the witness with evidence of his recent perjury conviction. The court explained its ruling on the Social Security card allegation as follows: But in light of the fact that the perjury conviction itself has been admitted and discussed in front of the jury, I dont think the additional comment that he made a false application for [a] social security card . . . would be sufficiently probative to outweigh the undue consumption of time and confusion that I believe would result from its admission in front of the jury. So on the [Evidence Code section] 352 analysis, that information is deemed inadmissible. This was not an abuse of discretion. Victims perjury in 2000, for which he was convicted and served time in jail, was potentially far more damning of his credibility than a 15-year-old charge of falsifying a Social Security card application. The evidence was cumulative and the trial court had discretion to exclude it.

D.    Vasquezs Sentence

The United States Constitution requires that any factor increasing the penalty for a crime beyond the statutory maximum (other than a prior conviction) must be submitted to a jury and proved beyond a reasonable doubt. (Apprendi, supra,530 U.S. at p. 490; U.S. Const. 6th & 14th Amends.) The relevant statutory maximum is the maximum sentence a judge may impose without any additional findings. (Blakely, supra, 542 U.S. at pp. 303-304.)

The trial court sentenced Vasquez to the upper term of eight years for the kidnapping plus a concurrent three years for the felon-in-possession count. The trial court chose the upper term for the kidnapping based upon the fact that Vasquez had been convicted of another crime for which consecutive sentences could have been imposed but for which concurrent sentences were being imposed. (Cal. Rules of Court, rule 4.421(a)(7).)[2] Vasquez argues that imposition of the upper term violated his constitutional rights as described in Apprendi and Blakely. The Attorney General responds that conviction of the second offense for which consecutive terms could have been imposed is a fact found by the jury beyond a reasonable doubt and, therefore, the trial court was not constitutionally prohibited from relying upon it to impose the upper term.

Under Californias Determinate Sentencing Law (DSL), where a crime calls for punishment of a lower, middle, or upper term, the trial court must choose the middle term unless the court finds circumstances in aggravation or mitigation warrant imposition of the upper or lower terms. ( 1170, subd. (b).) A nonexclusive list of circumstances in aggravation is contained in rule 4.421. Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), has recently held that the DSLs system for imposing an upper term is unconstitutional [b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt . . . . Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Apprendi, supra,] 530 U.S. [466] at 490. (Id. at p. __[127 S.Ct. 856, 868].) Thus, under Cunningham,it would be impermissible to impose an upper term based upon the trial courts finding, by a preponderance of the evidence, that the crime involved great violence, the victim was particularly vulnerable, or the defendant took advantage of a position of trust. (Rule 4.421(a)(1), (3), (11).)

In this case, however, the trial court relied upon the fact that Vasquez was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed. (Rule 4.421(a)(7).) This was the only fact upon which the trial court relied. There were no mitigating factors. The Blakely issue was argued at the sentencing hearing and the trial court concluded that it was not inconsistent with Blakely to impose an aggravated term on the basis of this one aggravating factor since a jury could do no more than it had already done in convicting the defendant of the other crimes. The court could tell from the jurys verdict that the defendant was convicted of two crimes. And whether the two crimes could be sentenced consecutively is not a factual question at all. The trial courts reasoning has survived Cunningham.

Blakely described three types of facts that a trial judge may properly use to impose an aggravated sentence: (a) the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301); (b) facts reflected in the jury verdict (id. at p. 303, italics omitted); and (c) facts admitted by the defendant (ibid., italics omitted). Unlike other facts relating to the crime listed in rule 4.421(a), the conviction of other crimes for which consecutive sentences could have been imposed is a fact reflected in the jury verdict, i.e., the jury found Vasquez guilty, beyond a reasonable doubt, of two offenses. As a matter of law, the trial court could have ordered the terms for the two convictions to run consecutively. ( 669, 1170.1, 654.) Therefore, the factual basis for imposing the upper term is the jurys finding, beyond a reasonable doubt, that defendant committed two crimes. Accordingly, the sentence does not violate Apprendi, Blakely, or Cunningham.

E.     Posadass New Trial Motion

1.      Background

Posadas made a motion for a new trial pursuant to section 1181, subdivision 8, based upon newly discovered evidence.[3] The evidence was the testimony of Luis Valencia Mendoza, who had allegedly met Posadas while they both were in jail after the jury rendered its verdict in this case. The witness, who goes by the last name of Valencia, said that he was approached by Posadas in jail, who asked him if he was related to Victim. (Victims full name is Guillermo Velasquez Valencia.) Valencia told him that Victim is his first cousin and Posadas replied that Victim was the reason Posadas was in jail. He said that Victim had lied in court and accused Posadas of having kidnapped him. It was then that Valencia recalled a conversation he had with Victim in October 2003 in which Victim told him that he owed someone named Shorty $30,000. Victim had asked Valencia if he knew Shorty but Valencia did not. Victim said, Thats the--I owe him $30,000. And, I mean, hes all over my nerves. And I dont know what to do, so I put him in jail.

Valencia was middle close to his cousin, Victim, and had seen him from time to time over the years. Back in 1996 or 1997, Victim had asked if he wanted to buy a gram of cocaine and gave him prices from ounces and pounds of both cocaine and methamphetamine. Victim also told Valencia he had once been caught selling drugs. Valencia denied that there were any male family members with the name Guadalupe Valencia, which was the name of the uncle Victim said had given him the cocaine he supplied to BNE Officer Blum in 1993.

Valencia had been incarcerated on charges of cultivating marijuana when he met Posadas in jail in 2005. He was given probation for the marijuana charge. He claimed to have had a prior felony conviction for discharging a firearm for which he was then on parole. He admitted to having been formerly involved in gangs and of having used drugs in the past.

Valencia had not known Posadas prior to meeting him in jail. He agreed to testify because it seemed to him that Posadas was innocent and Valencia was concerned about Posadass family.

2.      Contention

In his new trial motion, Posadas argued that Valencias testimony would support the defense theory that the incident that led to his arrest was really a drug deal gone awry and that Victim had concocted the kidnapping story to put Posadas in prison. It also provided further impeachment of Victim. The trial court denied the motion. The court determined that if Victim had concocted the kidnapping story because of money he owed Posadas, Posadas would have known about the debt all along and, in any event, Vasquez had already testified that the entire incident involved a drug deal.[4] Posadas argues on appeal that this ruling was error.

3.      Analysis

The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. (People v. Delgado (1993) 5 Cal.4th 312, 328, quoting People v. Williams (1988) 45 Cal.3d 1268, 1318.) In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: 1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits. (People v. Delgado, supra, 5 Cal.4th at p. 328, quoting People v. Sutton (1887) 73 Cal. 243, 247-248.)

We find no abuse of discretion. Facts that are within the knowledge of the defendant at the time of trial are not newly discovered even though he did not make them known to his counsel until later. (People v. Greenwood (1957) 47 Cal.2d 819, 822.) Certainly Posadas would have known about the alleged debt and might have found some way to introduce the evidence at trial. But even if that to which Valencia could testify was truly newly discovered, the trial courts ruling contains the implied conclusion that the evidence is not such that it makes a different result probable on retrial.

Motive was a problem for both sides in this case but what comes through the record is that, whatever really happened, it had something to do with drugs. Evidence of a $30,000 debt might explain why Victim would have made up a story about kidnapping. But it also provides an alternative motive for the prosecution--Posadas might have kidnapped Victim to pressure him to make good on the $30,000. Viewed that way, Victims statement that he put him jail would not be inconsistent with a finding that Posadas had kidnapped him. Furthermore, the evidence might not have been very credible. In deciding whether newly discovered evidence would make a different result reasonably probable, the trial court may consider credibility as well as materiality of the newly discovered evidence. (People v. Delgado, supra, 5 Cal.4th at p. 329.) The trial court expressed its view of Valencias credibility when the court asked defense counsel: [A]re you saying that this witness that testified today [Valencia] is overwhelmingly far more credible than you believe [Victim] to be based on your review of the transcript? When counsel responded that he did, the court asked him, You didnt see any inconsistencies in his testimony here today? Thus, even if defendant could not with reasonable diligence have discovered and produced the evidence at the trial, we are not prepared to say that it is such as to render a different result probable on a retrial. Of that the court below was in a much better position to judge than we are. (People v. Sutton, supra,73 Cal. at p. 248.)

IV.              The Petitions for Habeas Corpus

In their petitions for habeas corpus, defendants contend that they were denied effective assistance of counsel because their attorneys failed to introduce into evidence the transcript of Victims 911 call or to question Victim about certain of its contents. Vasquez also contends that counsel was ineffective in his closing argument for failing to expressly contest the prosecutions motive theory.

To demonstrate constitutionally ineffective assistance of counsel, a defendant must prove two things. First, defendant must show that counsels performance was unreasonable when measured by prevailing professional norms. Second, defendant must show that there is a reasonable probability that but for counsels acts or omissions, the result of the proceeding would have been more favorable to the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To prove deficient performance, defendant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. (People v. Pope (1979) 23 Cal.3d 412, 425.) In evaluating a defendants claim of deficient performance by counsel, there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance [citations], and we accord great deference to counsels tactical decisions. (People v. Frye (1998) 18 Cal.4th 894, 979.) A reviewing court will reverse a conviction on the ground of inadequate counsel only upon an affirmative showing that counsel had no rational tactical purpose for his or her act or omission. (Id. at pp. 979-980.)

An appellate court receiving [a petition for a writ of habeas corpus] evaluates it by asking whether, assuming the petitions factual allegations are true, the petitioner would be entitled to relief. [Citations.] If no prima facie case for relief is stated, the court will summarily deny the petition. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)

Defendants point out that during the 911 call, the operator twice told Victim that police already had the suspects. Defendants argue that this fact is inconsistent with the evidence supplied by Officer Zuniga, which was that when he responded to the Yaez home, after the 911 call was complete, Victim was still shaking and scared and kept looking around, repeatedly worrying, Theyre going to get me. Defendants argue that Victims display of fear to Zuniga must have been feigned since Victim would have already been told that defendants had been apprehended. They claim that trial counsel was ineffective for failing to bring this to the jurys attention.

Zunigas observation of Victim at the scene was not recorded in a police report so that counsel probably did not anticipate his testimony. In addition, Zunigas testimony came after Victims. Thus, defendants concede that counsel cannot be faulted for failing to pursue the subject in their cross-examination of Victim. As defendants point out, however, Victim was subject to recall so that he could have been questioned on the point later in the trial. According to defendants, counsel should have recalled Victim to the witness stand, questioned him about the fact that he had already been told that the suspects had been apprehended when Zuniga interviewed him, and then had the transcript of the 911 call entered into evidence. Both offer several hearsay exceptions by which the document, or portions of it, would have been admissible. Posadass trial counsel does not recall her reasons for not introducing the 911 tape but she does recall that she did not like the fact that the transcript included a statement in which Victim identified Posadas by his nickname, Shorty, as one of the perpetrators. Vasquezs trial counsel does not address the subject. We conclude that counsel could have had a rational tactical purpose for failing to pursue this evidence.

Since Victim is a Spanish speaker, the 911 operator was assisted by an interpreter. During the course of the operators questioning Victim about the specifics of his report, the interpreter asked him, Can you see them, yes or no? Victim responded, Yes, I think so. Then the interpreter said, Okay. Very good sir. It seems like we already talking to them [sic], to which Victim responded, Yes. After confirming that Victim was inside the trailer from which he had called, the interpreter then told him, Okay, Sir, just stay there. We already have them. These are the statements defendants claim should have assuaged Victims fears so that the fright he displayed when Zuniga arrived must have been an act. However, counsel could easily have concluded that the evidence was not as damaging to Victims credibility as defendants now claim. If Victim had truly been as frightened as he appeared--Mr. Yaez testified that he was actually crying with fear--he might not have really understood the operators remarks to mean that he was safe. That is, the evidence could have cut either way. If the jury were to interpret it as supporting the finding that Victim was, indeed, afraid for his life, recalling Victim to elicit the testimony could have done more harm than good. Furthermore, other parts of the transcript contain information that would corroborate Victims story: He told the operator that two men were chasing him, that they were armed, that they had tied him up with a belt, and that one of his abductors was an acquaintance he knew as Shorty, the name by which he knew Posadas. Introducing the entire transcript, as defendants argue counsel should have done, would have put all of this before the jury. It follows that counsels failure to put this evidence before the jury was not unreasonable.

Vasquez also contends that, in closing argument, his attorney failed to challenge the prosecutions theory of motive, i.e., that Posadas wanted to kill Victim to keep him from revealing Posadas as a confidential informant. Vasquez claims his attorney should have pointed out that agents Heredia and Fox denied knowing any informants who resorted to murder to protect their confidentiality and that if Posadas truly wanted to silence Victim, he would not have waited until 16 days after the search of Victims trailer to do it.

It is true that, in his argument to the jury, counsel did not mention the 16 day gap or the testimony of agents Heredia and Fox. But such omissions hardly amount to the withdrawal of a crucial defense as Vasquez claims. (See People v. Diggs (1986) 177 Cal.App.3d 958, 967, 970.) The transcript of counsels closing argument reveals that he challenged the prosecutions motive theory at length, focusing primarily