People v. Lopez, H029737 (Cal. App. 6/27/2007)

• Decision Date: 27 June 2007
• Docket Number: H029737
• Citation: People v. Lopez, H029737 (Cal. App. 6/27/2007) (Cal. App. 2007)
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ANTONIO LOPEZ LOPEZ, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. ANTONIO LOPEZ LOPEZ, Defendant and Appellant.

H029737

Court of Appeals of California, Sixth Appellate District

June 27, 2007.

NOT TO BE PUBLISHED

Appeal from the Monterey County Super. Ct. No. SS052108A.

PREMO, Acting P.J.

Defendant Antonio Lopez Lopez appeals from a judgment entered following his conviction on charges of residential burglary (Pen. Code, § 459),¹ and transportation of a controlled substance, methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The court sentenced defendant to seven years in prison; the sentence included an upper term sentence on the burglary conviction.

Defendant contends that the court erred in admitting a statement that he made to police in connection with a prior, unrelated burglary investigation. The statement was obtained through a police interpreter, but his partner, the officer who interrogated defendant in English, was the witness who offered testimony at trial concerning the substance of defendant's prior statement. Defendant contends that this evidence was inadmissible hearsay because it did not meet the "language conduit" test articulated in Correa v. Superior Court (2002) 27 Cal.4th 444 (Correa ). Further, defendant contends that admission of his prior statement to the police violated his Sixth Amendment confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

In addition, defendant claims that the court erred in imposing an upper term sentence for the burglary conviction in violation of his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process. He claims that under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), he was entitled to have a jury determine beyond a reasonable doubt any aggravating facts that were used as prerequisites to the imposition of an upper term sentence.

We conclude that the court did not abuse its discretion by its admission of defendant's statement made through a translator under the language conduit theory. Since the translated statement was defendant's own statement, its admission did not violate defendant's constitutional right of confrontation. We find further, based upon a very recent controlling decision of United States Supreme Court (see Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham)), that there was Blakely error. We therefore reverse the judgment and remand for resentencing in light of the holding in Cunningham.

FACTS

We present a summary of the evidence from the trial utilizing the applicable standard. We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.)

I. Prosecution Evidence

A. Testimony of Giselle C.

Giselle C., 14 years old at the time of trial, was at home taking care of her three younger sisters on the morning of July 15, 2005. They heard footsteps on the porch, and Giselle saw a male in a partially constructed room by the porch. Giselle gathered her sisters together, and the four of them went into their parents' room because it had a lock. She heard multiple (probably more than two) people whispering. The substance of what she heard was, " `Is someone there?' " Giselle heard this question whispered at least twice.

Several minutes later, Giselle heard car doors slam. About three minutes later, she heard her father ask if she and her sisters were all right. He then ran out. When Giselle came out of the bedroom, she noticed that the television was missing and that "all kinds of stuff [had been] thrown [around] in the living room."

B. Testimony of Arnoldo Sanchez

At about 10:00 a.m. on July 15, 2005, Arnoldo Sanchez arrived at his home on Old Stage Road in Monterey County. He observed defendant located about three meters from the front door. Sanchez and defendant got within about one meter of each other, and Sanchez asked, " `What are you looking for?' " Defendant responded that "they were looking for this man named Lopez." Sanchez saw a minivan parked very close to the house with a woman in the driver's seat and a man dressed as a woman in the middle of the back seat. He also observed that there was a cord dangling out of the back of the van.² Sanchez responded to defendant that no one named Lopez lived at the house and that defendant should leave. Defendant said that they were leaving and got into the front passenger seat. Sanchez moved his vehicle in order to allow the minivan to leave.

When Sanchez walked into his house—his front door was ajar—the first thing he noticed was that his television was missing and there were some items dropped on the floor. He called out to his daughters to see if they were all right, and one of them said that they were fine. Sanchez then got into his car with his ranch worker, Nestor Amarillias, to follow the minivan. Sanchez caught up with defendant and his associates approximately two to three miles away, and he began honking to try to get the van to stop. Because the van did not stop, Sanchez called the police. He continued to follow defendant; the van stopped about five or six miles from Sanchez's house, the driver and the passenger in the back seat exited, and defendant got into the driver's seat and drove off. Defendant drove the van fast and Sanchez continued the pursuit.

Defendant eventually stopped the van, got out, and started running; he left the engine running. Amarillias chased defendant, while Sanchez continued talking on the phone with the police and describing where the two vehicles were located. After Sanchez saw Amarillias struggling with defendant, he joined the chase; he and Amarillias caught up with defendant and subdued him.

A policeman arrived and arrested defendant. The police recovered from the van Sanchez's television (that had been inside the house). They also recovered from the van various tools that Sanchez used on his ranch (weed whacker, leaf blower, gas can, and tool box) that had been stored on Sanchez's front porch. Sanchez also observed that the police recovered a Marlboro box from defendant's pocket.

C. Testimony of Deputy Sheriff Anthony Wood

Deputy Sheriff Anthony Wood with the Monterey County Sheriff's office recovered seven items (i.e., the television, weed whacker, leaf blower, tool box with tools, gas can, hair clipper, and miscellaneous tools) from the minivan defendant was driving. Deputy Wood caused the contents of the Marlboro box from defendant's pocket to be sent to the Department of Justice for analysis. (The parties stipulated at trial that a baggie containing .61 grams of methamphetamine was recovered from this cigarette box.)

D. Officer Stephen Craig³

Stephen Craig is a Salinas Police Officer. On June 25, 2004, he interviewed defendant (who was then using the name "Jose Martinez") a prowling incident in which defendant had been seen leaving the backyard of a Salinas home on Meadow Drive. Two weeks earlier, defendant had been observed burglarizing a garage at the same location. Officer Craig interviewed defendant with Officer Dagoberto Zubiate, who acted as a Spanish-speaking interpreter.

After being advised of his Miranda rights,⁴ defendant said that he had been in the backyard looking for a friend of his. Defendant "then changed his story and told [the officers] that he was a mechanic and that he had keys to a vehicle that he was going to be working on in the backyard. And . . . he [then] . . . spontaneously told Officer Zubiate that he didn't go into the garage and didn't steal things[, e]ven though [the officers] hadn't mentioned that at the time [and had] only asked him why he was in the backyard."

II. Defense Evidence

Deputy Sheriff Wood, who was called as a witness by the defense, was the lead investigative officer for the case. He did not instruct anyone to obtain fingerprint evidence from Sanchez's residence. Deputy Wood was unable to connect defendant to the registered owner of the minivan.

PROCEDURAL BACKGROUND

By amended information filed on September 19, 2005, defendant was charged with six felony counts, namely, first degree burglary (§ 459, count 1); assault with force likely to produce great bodily injury (§ 245, subd. (a)(1), count 2); transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a), count 3); possession of a controlled substance (id., § 11377, subd. (a), count 4); receiving stolen property (§ 496, subd. (a), count 5); and forgery (§ 470, subd. (a), count 6). At the prosecution's request, the court dismissed count 2 before trial.⁵ Immediately after announcing the dismissal, the trial judge recited the parties' understanding that no evidence would be presented concerning counts 5 and 6, and that the case would proceed to trial on the burglary charge (count 1), the transportation of a controlled substance charge (count 3), and the controlled substance possession charge (count 4, a lesser included offense to count 3).

Defendant was found guilty after a jury trial of first degree burglary, and of transportation of a controlled substance. The court thereafter sentenced defendant to a total term of seven years in state prison. He was sentenced to the upper term of six years for the first degree burglary conviction, and a consecutive term of one year in prison for the drug transportation conviction (one-third of the middle term). Defendant filed a timely notice of appeal from the judgment.

DISCUSSION

I. Contentions On Appeal

Defendant asserts two challenges to the judgment:

1. The court erred by admitting evidence of defendant's statement to the police in connection with a prior investigation because the statement, made through an interpreter, did not satisfy the "language conduit" test articulated in Correa, supra, 27 Cal.4th 444.

2. The court imposed an upper term sentence for the burglary conviction (§ 118) that was based upon aggravating circumstances that were not part of a jury's factual findings. Under Blakely, supra, 542 U.S. 296, this sentence violated defendant's right...