Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. BA276840, Ruffo Espinosa, Jr., Judge
Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmond G. Brown, Jr., Attorneys Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Susan Lee Frierson, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Rigoberto Salido appeals his conviction by jury of three counts of second degree robbery. (Pen. Code, § 211.) The trial court sentenced him to seven years in state prison. Salido contends that the trial court violated his constitutional rights by admitting statements Salido made to law enforcement officers (Miranda v. Arizona (1966) 384 U.S. 436), by admitting a statement that Salido's co-defendant made to officers (Crawford v. Washington (2004) 541 U.S. 36), and by imposing an upper term on count three based on aggravating facts not found by the jury. (Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856].) We conclude that the court erred by imposing only one $20 court security pursuant to section 1465.8. We otherwise affirm.
All statutory references are to this code unless otherwise stated.
FACTS
Rigoberto Salido and Eric Jimenez committed a series of robberies between December 14, 2004 and January 3, 2005. First, Jimenez robbed two cashiers at Home Depot (counts 1 and 2). Salido, a Home Depot employee, helped Jimenez by leaving the front door open for him after closing time and signaling Jimenez. Next, Salido robbed Maria's Market using Jimenez' car (count 3). Finally, Jimenez robbed Parra's Market while Salido waited in the car (count 4). Jiminez' car was used in each robbery. Leaving the scene of the final robbery, Salido and Jimenez crashed and abandoned Jimenez' car.
After the robberies, Salido and Jimenez met and agreed on an alibi. They would tell detectives that Jimenez' car had been stolen while they were together.
On January 4, Jimenez went to the East Los Angeles Sheriff's station and reported his car stolen. Jimenez said the car was taken while he was with Salido.
On January 5, Sheriff's deputies contacted Salido at work at Home Depot. Detective Manuel Garza questioned Salido as a witness to the reported auto theft. Salido voluntarily returned to the station with Detective Garza for further interview. Salido gave his alibi. Salido told Garza that the car had been stolen while he was with Jimenez.
After giving the alibi, Salido consented in writing to a search of his home. Officers searched Salido's home, returned to the station and arrested Salido. He was not questioned further on January 5.
On January 6, Detective Garza warned Salido of his rights pursuant to Miranda v. Arizona, supra, 384 U.S. 436, and then questioned Salido about the robberies. Salido waived his rights in writing and on videotape. In a videotaped confession Salido admitted his involvement in each of the robberies.
PROCEDURAL HISTORY
Jimenez and Salido were tried separately. Salido moved to exclude Jimenez' January 4 alibi statement, Salido's January 5 alibi statement and Salido's January 6 confession. The trial court denied the motions.
The jury convicted Salido of second degree robbery as charged in counts one, two and three. The jury found Salido not guilty of count four, the Parra market robbery. The jury found not true the allegation that a firearm was used in each robbery.
The trial court imposed the upper term of five years for count 3, the Maria's Market robbery, based on factors in aggravation. The trial court also imposed two consecutive one-year terms for counts one and two (one third the midterms), for a total term of seven years. The court imposed only one $20 court security fee for the three convictions.
DISCUSSION
Admissibility of Co-Defendant Jimenez'statements
At trial, Detective Garza testified that on January 4 Jimenez reported his car stolen, and that Jimenez told officers that Salido was with him when the car was stolen. This statement linked Salido to Jimenez and to the car at the time of the robberies. Salido contends the statement was testimonial hearsay, and that its introduction violated his right to confront witnesses against him under the 6th and 14th amendments to the United States Constitution. We disagree.
In Crawford v. Washington, supra, 541 U.S. 36, the Supreme Court held that a testimonial statement of a witness that is absent from trial is admissible only if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine. Substantial evidence supports the trial court's determination that Jimenez'statement was not testimonial. Garza testified that "Eric Jimenez came into East L.A. station to report his car stolen." The trial court found Jimenez'statement was not made in response to police interrogation and its use in litigation was not anticipated.
Testimonial hearsay has not been comprehensively defined, but it includes prior testimony at a preliminary hearing, before a grand jury, or at a former trial and police interrogations. (Crawford v. Washington, supra, 541 U.S. at p. 68.) Jimenez'statement reported a crime. It was not made in response to structured police questioning. The U.S. Supreme Court has held that a victim's report of a crime in a 911 call is not testimonial where the call is made during an assault and the statement is obtained to respond to an emergency, rather than to investigate and prosecute a crime. (Davis v. Washington (2006) 547 U.S. __ [126 S.Ct. 2266, 2276-2277].) On the other hand, hearsay statements are testimonial when made in the course of police interrogation if the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Id. at pp. 2273-2274.) Not all statements made by a crime victim to a police officer are testimonial. To be testimonial, "the statement must have been given and taken primarily for the purpose ascribed to testimony-to establish or prove some past fact for possible use in a criminal trial." (People v. Cage, (2007) 40 Cal.4th 965, 984.)
Whether the statement was testimonial or not, its introduction did not violate the confrontation clause because it was offered only for a non-hearsay purpose. The confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Crawford v. Washington, supra, 541 U.S. at p. 60, fn. 9; People v. Ledesma (2006) 39 Cal.4th 641, 707, fn. 18.) Jimenez'statement was offered only to explain why officers contacted Salido on January 5, as a witness to a reported theft. It was not offered to prove the truth of the matter asserted, that Jimenez' car was actually stolen while he was with Salido. The court gave a limiting instruction.
Admissibility of Salido's Statements
Salido contends the trial court violated Salido's privilege against self-incrimination under the Fifth and Fourteenth Amendments by admitting Salido's January 5 alibi and his January 6 confession. (Miranda v. Arizona, supra, 384 U.S. 436.) Salido was not given a Miranda warning before he made the January 5 alibi statement. Salido was given a Miranda warning before he made the January 6 confession.
We review independently a trial court's ruling on a motion to suppress a statement under Miranda. In doing so, we accept the trial court's resolution of disputed facts and inferences and its evaluations of credibility if supported by substantial evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1092-1093.)
"A defendant's statements challenged as involuntary are inadmissible at trial unless the prosecution proves by a preponderance of the evidence that they were voluntary." (People v. Guerra, supra, 37 Cal.4th at p. 1093.) The totality of the circumstances are considered to determine whether the defendant's will was overborne by the circumstances surrounding the giving of the confession. (Ibid.) We make the same inquiry to determine whether Salido voluntarily waived his Miranda rights. (Ibid.)
The trial court conducted an evidentiary hearing on the admissibility of Salido's statements. (Evid. Code § 402.) The trial court determined that no Miranda warning was required before the January 5 statement, because it was not a product of custodial interrogation. The trial court determined that the January 6 confession was made freely and voluntarily after Salido was advised of and waived his Miranda rights. We agree.
The trial court's evaluation of credibility and resolution of conflicting facts is supported by substantial evidence. Salido contradicted himself on the stand and admitted to deliberately making false statements to a law enforcement officer. Detective Garza's testimony established that on January 5 officers questioned Salido only as a witness to the reported auto theft. They did not question him as a suspect in the robberies until January 6. When he was contacted at Home Depot, Detective Garza told Salido he was free to leave. Salido testified he was handcuffed but Detective Garza testified he was not. Garza testified he gave Salido a choice to go to the station for the interview or to stay at Home Depot for it. Salido chose to do go to the station to avoid embarrassment at his workplace. At the station, Garza told Salido he was free to leave. Salido stayed. He gave the alibi statement that he and Jimenez had fabricated to get him "off the hook." Salido voluntarily gave written consent to a search of his home. A reasonable person in Salido's position would have believed he or she was free to leave. The January 5 statement was not given in the context of a custodial interrogation and no Miranda warning was required. "Volunteered statements of any kind are not barred by the Fifth Amendment." (Miranda v. Arizona, supra, 384 U.S. at p. 478.)
Salido's videotaped confession on January 6 was also voluntary. He was Mirandized before he was questioned as a suspect in the robberies. The trial court found that Salido knowingly and voluntarily waived his rights before making these statements. We agree.
The trial court also found that the confession was not a product of any coercive force acting upon Salido. The trial court's assessment is supported by substantial evidence.
Imposition of Upper Term Sentence
The trial court imposed the upper term. It identified aggravating circumstances in support that included Salido's numerous contacts with the law in juvenile court and the increasing seriousness of his crimes. Imposition of the upper term did not violate Salido's Sixth Amendment right to a jury trial because at least one aggravating circumstance was established by Salido's criminal record. (People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 D.A.R. 11041] "Black II.")
On review, a trial court's reasons for its sentencing choice are upheld if supported by available, appropriate, relevant evidence. (Black II, supra, __ Cal.4th at p.__, fn. 7 [2007 D.A.R. 11041, 11048, fn. 7].) The trial court is presumed to have read and considered the probation report. (Ibid.) The Sixth Amendment jury trial guarantee does not allow a judge to impose an upper term sentence based on a fact, other than a prior conviction, that has not been found by a jury or admitted by the defendant. (Cunningham v. California, supra, __ U.S. __ [127 S.Ct. at p. 860].) "[I]mposition of the upper term does not infringe upon the defendant's constitutional right to a jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendant's record of prior convictions." (Black II, at p. __ [2007 D.A.R. 11041, 11046-11047].)
In our case, the trial court's conclusion that defendant's contacts with the law in juvenile court were numerous and that his crimes were increasing in seriousness was supported by the probation report, which includes juvenile adjudications for receiving known stolen property (§ 496, subd. (a)), minor in possession of concealable firearm (§ 12101, subd. (a)) and grand theft of a person (§ 487, subd. (c)). Each of the juvenile petitions were sustained upon Salido's admissions. Salido has no prior adult convictions, but a record of numerous sustained juvenile petitions is an aggravating circumstance that warrants imposition of an upper term. (Cal. Rules of Court, rule 4.421(b)(2).) "[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black II, supra, __ Cal.4th __, __ [2007 D.A.R. 11041, 11044-11045].)
The appellate courts of this state are divided on the question whether a juvenile adjudication may be used as a prior conviction for purposes of sentence enhancement. In People v. Nguyen (2007) 152 Cal.App.4th 1205, a divided panel of the Sixth District recently held that a juvenile adjudication is not a prior conviction within the meaning of Apprendi because the juvenile offender does not have the right to a jury trial in the juvenile proceedings. We agree instead with those cases that conclude that when a juvenile receives all the process constitutionally due at the juvenile stage, a resulting adjudication may properly be characterized as a prior conviction for purposes of Apprendi. (People v. Bowden (2002) 102 Cal.App.4th 387, 394; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Lee (2003) 111 Cal.App.4th 1310, 1316, cert. denied (2004) 542 U.S. 906; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 834, cert. denied 543 U.S. 884; see also U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032-1033; U.S. v. Jones (3d Cir. 2003) 332 F.3d 688, 696; U.S. v. Tighe (2001) 266 F.3d 1187, 1200 (dis. opn. of Brunetti, J.).)
Security Fee
Defendant was convicted of three robbery counts. Section 1465.8, subdivision (a)(1) requires imposition of a $20 security fee on "every conviction" for a criminal offense. The section "unambiguously requires a fee to be imposed for each of defendant's convictions." (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) These $20 fees should have been imposed.
DISPOSITION
The judgment must be modified to impose three $20 fees in light of the three convictions. (§ 1465.8, subd. (a)(1).) The judgment is otherwise affirmed.
We concur: YEGAN, Acting P.J. PERREN, J.