P. v. Fernandez

Filed 2/10/10 P. v. Fernandez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Affirmed as Modified.

Law Offices of Kiana Sloan-Hillier and Kiana Sloan-Hillier for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant Eduardo Fernandez of transportation of cocaine (Health & Saf. Code,  11352, subd. (a)) and possession for sale of cocaine (Health & Saf. Code,  11351) and found that the weight of the cocaine involved in each offense exceeded 40 kilograms (Health & Saf. Code,  11370.4, subd. (a)(5).) The trial court imposed a 24-year sentence.

In this appeal, defendant raises multiple claims of error. His first contention arises out of his unsuccessful motion to suppress evidence of phone conversations intercepted pursuant to a wiretap authorization. (Pen. Code,  1538.5.)[1] He contends that the trial court erred because it summarily denied the suppression motion without first reviewing the sealed affidavit which had been offered to support the wiretap application. We agree that error occurred but conclude it was harmless beyond a reasonable doubt. Second, defendant raises two assignments of error related to the defense of duress. He urges that the trial court erred in declining to submit an instruction about duress. We disagree, finding that defendant failed to offer substantial evidence to support the defense. Defendant also urges that the trial court erred in precluding as hearsay some evidence that he offered to support the defense. We find that the evidence was not hearsay but that its exclusion was harmless because it did not support a defense of duress. Lastly, defendant raises several claims of sentencing error. He claims remand is necessary because the trial court incorrectly believed he was not eligible for probation. In addition, he contends his sentence constitutes cruel or unusual punishment in violation of the state and federal constitutions. Both claims have been forfeited because they were not raised below. Nonetheless, we consider and reject both of them on the merits. Lastly, defendant urges, and the Attorney General agrees, that he is entitled to additional custody credit. We agree. We therefore direct preparation of an amended abstract of judgment to reflect the correct computation, but in all other respects, affirm the judgment.

STATEMENT OF FACTS

1. The Prosecutions Case in Chief

This case arises out of an October 2006 investigation by the Drug Enforcement Administration (DEA) of an organization which transported large quantities of cocaine from Mexico to Los Angeles. Special agent James Nunnallee coordinated the investigation. In Mexico, the target organization was run by a man known as Tavo. Tiburon, the primary target of the investigation, was the Los Angeles distributor of the cocaine. As part of the investigation, the DEA obtained judicial authorization to wiretap the phone conversations of Tavo and Tiburon. Through the wiretaps, Agent Nunnallee learned that Tiburon was storing cocaine at defendants home located in a residential area of South Gate.[2] Based upon information gleaned from the intercepts, the DEA commenced surveillance of defendants residence.

The DEA surveillance, conducted over a period of days, revealed several contacts between defendant and Tiburon both at and away from defendants home. On October 15,[3] the DEA learned through wiretap intercepts that a narcotics shipment was scheduled to arrive that day. At approximately 7:30 a.m. on October 15, Tiburon arrived by car at defendants residence. The two men then left in separate cars, defendant following Tiburon. Five minutes later, the two returned to defendants home in their respective cars. Defendant left his car, entered Tiburons vehicle, and sat in the passenger seat for a minute. Defendant then left Tiburons car and reentered his home. Tiburon drove off. At 7:54 a.m., Tiburon drove into a gas station approximately a mile from defendants home. He met an unidentified man waiting in a parked car. Tiburon and the man each then drove to defendants home. The unidentified man parked his car in defendants garage. Defendant was seen walking his dog and speaking on his cell phone. About an hour later, the unidentified man left but not before defendant, still using his cell phone, returned home. Shortly thereafter, defendant and Tiburon left together, with defendant driving Tiburons car. An hour later, they returned, each carrying several shopping bags into the home.

At 5:00 p.m. that afternoon, law enforcement executed a search warrant at defendants home, recovering 60 kilograms of cocaine (approximately 132 pounds).[4] The street value of this large quantity of cocaine is several million dollars. The cocaine was found in several locations. (No residents were present during the search.)

40 kilograms, in total, were recovered from the garage. 20 kilograms, wrapped in separate 1-kilogram packages, were found inside a white plastic bag located on a shelf of a stand-alone tiki bar. Another 10 kilograms wrapped in plastic bags were found inside a cooler located on a couch in the garage. And next to the cooler, the police found a trash bag containing another 10 kilograms of cocaine. Additionally, items typically associated with drug trafficking such as a scale, a machine to seal plastic, and a box of plastic bags were found in the garage.

In the homes master bedroom, the police found five kilograms inside of a box placed behind a clothes dryer. In the bedroom, the police also found a scale to weigh amounts up to two pounds, and near the scale, a shirt containing $800 in cash. An entry way closet yielded another 15 kilograms of cocaine hidden in household containers such as a detergent box, cracker box, pop corn box, and cookie tin.

Financial documents bearing defendants name, including a credit report, checkbook, and payroll stubs, were found in the home and the garage.

Expert testimony about the narcotics trade established that it was common for a criminal organization to place an amount as large as 60 kilograms of cocaine in a residence (a stash house) and then to distribute the drug in smaller quantities from there. It is very common for large scale distributors to hide drugs in common household items throughout a residence. In light of the large quantity recovered, the cocaine was possessed for purposes of sale. Because of the high monetary value of that amount of cocaine, the drug trafficking organization would have to trust the individual in whose home the cocaine was stored. That individual would be a trusted person in that organization thats involved in . . . the storage and to a degree the transportation and distribution of the cocaine. The individual is entrusted to count, to keep a record of the narcotics. Its imperative for them to do that. If either a unit of narcotics or an amount of narcotics proceeds is missing, it generally falls back on that person who is running the location. [] . . . [] Its not uncommon for persons to pay with their life if narcotics or narcotics proceeds are missing.

Lastly, the prosecution introduced into evidence transcripts of 18 intercepted calls made between the evening of October 14 and the early evening of October 15. Because many of the conversations were in coded language, Agent Nunnallee testified to their intended meanings. Thirteen of these calls were conversations between defendant and Tiburon. Some of the conversations indicated defendants knowing involvement in the narcotics transactions while others related simply to arranging meetings. The remaining five calls were between Tiburon and a third party (usually Tavo) in which the participants made various plans and sometimes referred to defendant.

2. The Defense Case

Defendant testified that he rented the house from his mother. He lived there with his wife and four children. In August 2006, he met Tavo who was his wifes nephew.[5] Defendant agreed to rent one bedroom and the garage to Tavo. Several weeks later, defendant returned from a vacation with his family to discover that Tavo had moved into and was using the entire house, including the master bedroom. In September, Tavo introduced Tiburon to defendant. Tiburon was another nephew of defendants wife. Tiburon occasionally stayed at defendants home.

On October 13, defendant, while looking for a screwdriver, discovered a brick of drugs inside of Tavos toolbox. Tavo was not then at home. Defendant confronted Tiburon and told him that he and Tavo had to leave his house. Tiburon told defendant that he better do what hes telling me to do . . . or else hell kill somebody in my family, but Tiburon never threatened to kill anyone that day (October 13) or even the next day. After making his threat, Tiburon left defendants home. Based on this conversation with Tiburon, defendant believed that Tiburon was going to call Tavo and tell Tavo that defendant had asked them to leave his home. (Defendant conceded that he did not contact the police about Tiburons threat.)

According to defendant, over the next couple days, he was asked or instructed to do certain things by Tiburon such as drive him to various locations. He complied with those requests (including the ones made in the wiretapped phone conversations) because he was scared. He did what they told [him] to do because [his] family was in danger although he conceded that Tiburon never said he was going to kill [his] family today or tomorrow. At a certain point, he realized that drugs were being stored in [his] house and [his] garage but he permitted that to happen because they threatened [him]. (As will be explained later in detail, the trial court ruled that defendants testimony warranted an instruction about the defense of necessity, but not the defense of duress.)

Defendant did not return to his home after he learned that the police had searched it on October 15. Defendant was arrested five months later after he returned to his former employer (U.S. Gypsum) to ask for a job. Agent Nunnallee interviewed him that day. Defendant claimed that he told Agent Nunnallee about the threats from Tiburon.

3. The Prosecutions Rebuttal Case

Agent Nunnallee testified that during his March 21, 2007 interview of defendant, defendant never told him that he had been threatened by Tiburon. Defendant did tell Agent Nunnallee that he had agreed to rent the garage to Tiburon and Tavo for $800. Defendant was aware that money and drugs were being delivered to his home and supplied the agent with details about these transactions. There had been four deliveries of money and the last one had occurred on October 14 when he saw money being removed from underneath the seats of a vehicle parked in his garage. The last drug shipment to his garage occurred on October 10. It was a rather large shipment and the drugs were stored inside the garage and house. Defendant instructed Tiburon where to hide the contraband inside of his house.

In addition, Agent Nunnallee testified to intercepted phone conversations from October 4 and 6 in which defendant, Tiburon and Tavo discussed narcotics shipments and the purchase of plastic sealing machines.

4. The Parties Theories of the Case

In closing argument, the prosecutor relied upon a theory of aiding and abetting.[6] She urged that defendant knew that Tavo and Tiburon were storing cocaine with intent to sell at his house and transporting the contraband from that location and, with that knowledge, defendant acted with the specific intent to aid them in carrying out those crimes.

Defense counsel emphasized the burden of proof. In arguing that the prosecution had not proven guilt beyond a reasonable doubt, he noted the evidence which had not been produced such as defendants fingerprints on the packages of cocaine, defendants prior involvement with drug traffickers, or any recording of Agent Nunnallees interview with defendant. In addition, defense counsel urged that defendant was not guilty because he had the defense of necessity. (See fn. 11, infra.)

DISCUSSION

A.     THE MOTION TO SUPPRESS EVIDENCE

OBTAINED FROM THE WIRETAP

1. Legal Background

Wiretapping is generally prohibited in California. ( 631.) In 1995, the Legislature enacted section 629.50 et seq. to expand California wiretap law to conform to the federal law. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1196.) Under that statutory scheme, a prosecutor can present a wiretap application to a judge. ( 629.50.) The judge can authorize a wiretap after making four determinations on the basis of the facts submitted by the [prosecutor]. ( 629.52.) First, there must be probable cause to believe that an individual has committed a specified offense. ( 629.52, subd. (a).) The specified offenses include those charged in this case: possession with intent to sell and transportation of controlled substances. ( 629.52, subd. (a)(1).) Second, there must be probable cause to believe that the wiretap will intercept communications regarding the offense. ( 629.52, subd. (b).) Third, there must be probable cause to believe that the location where the wiretap is to be installed will be used by the person whose communications are to be intercepted. ( 629.52, subd. (c).) And fourth, it must be shown that [n]ormal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous. ( 629.52, subd. (d).) This last requirement is often referred to as the necessity requirement.

Because, as will be explained below, the trial court sealed the affidavit offered to support the request for the wiretap authorization, the parties debate the application of our Supreme Courts decision in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) to this case. We therefore set forth the issue and holding in Hobbs.

In Hobbs, supra, 7 Cal.4th 948, a confidential informant provided information included in an affidavit requesting a search warrant. The magistrate issued the search warrant and sealed the affidavit in order to protect the informants identity. The warrant was executed and incriminating evidence was seized. In the context of a motion to quash and traverse a search warrant, the defense moved to discover the sealed affidavit. The trial court reviewed the sealed material in camera and denied the defense motions.

On appeal, the issue was whether the sealing of the affidavit and utilization of an in camera review denied the defendant due process. The California Supreme Court held that it did not. Construing Evidence Code sections 1041 and 1042, subdivision (b) together,[7] the court held that it is proper to seal a search warrant affidavit if necessary to protect the identity of a confidential informant, and that a defendants due process right to discover information to attack the search warrant is adequately protected by a judicial in camera review of the sealed material when a defendant moves to suppress evidence ( 1538.5). (Hobbs, supra, 7 Cal.4th at pp. 971-975; accord: People v. Galland (2008) 45 Cal.4th 354, 363-365.)

2. Factual Background

During the investigation that resulted in defendants prosecution, five applications for orders authorizing wiretaps were filed. The applications were supported, in whole or in part, by a sealed affidavit, referred to as a Confidential Hobbs Attachment. The trial court granted all of the applications and ordered that the supporting affidavits remain sealed.

Defendant filed two motions regarding the wiretaps. Although there were five separate wiretaps, defendant explicitly limited his focus to just one: wiretap #06-214. This wiretap, authorized by Judge Larry P. Fidler on September 29, 2006, covered a phone primarily used by Tiburon and is the only wiretap which captured defendants conversations.

Defendants first motion sought to suppress the evidence obtained though the wiretap, that is, any testimony about or transcriptions of his intercepted phone conversations.[8] The motion argued, inter alia, that probable cause did not support granting of the application for a wiretap and that the necessity requirement had not been met. Although defendant attached to his motion the first and last pages of a 45-page affidavit submitted by a DEA agent in support of an application for a wiretap, it was not the wiretap that the defense was attacking.[9]

Defendants second motion sought disclosure of the sealed portion of the wiretap application and supporting affidavit. Defendant argued that Hobbs did not apply to wiretap applications and did not authorize sealing information in the underlying affidavit. He claimed that disclosure of the entire affidavit was required in order for him to effectively litigate his motion to suppress evidence about the intercepted phone conversations, particularly his claim that the necessity requirement had not been met. He argued that a cursory review of the unsealed portion of the affidavita document he had not attached to his motionrevealed that there [was] an inadequate statement concerning the use of other normal investigative techniques and procedures to justify issuance of the wiretap order. Defendant asserted that a judicial in camera review of the application and affidavitthe procedure sanctioned by Hobbswas insufficient to protect his due process rights.

The prosecutors opposition to the motion to suppress argued that probable cause supported issuance of the wiretap and that the necessity requirement had been met. To support that argument, the prosecutor summarized and paraphrased portions of the affidavit submitted by Agent Nunnallee in support of the application for Wiretap #06-214. In addition, the prosecution represented that it would provide an un-redacted copy of the wiretap affidavit . . . during the in camera hearing for review.

The District Attorney opposed the defense request for the sealed affidavit, arguing that any unsealing of the wiretap affidavits . . . would tend to reveal the identity of confidential informant(s) and could endanger the lives of such informant(s) and compromise ongoing investigations. The prosecution asserted that Hobbs applied to sealed affidavits offered to obtain authorization for a wiretap. Accordingly, it urged that if the defense made the appropriate motion under Hobbs to quash and/or traverse the wiretaps, the trial court should conduct its review of the sealed portions of the affidavits in conformity with the procedures set forth in Hobbs and an in camera examination of witnesses . . . to determine whether grounds still exist for maintaining confidentiality of the sealed information.

At the hearing on the motions, defense counsel stipulated, in order to establish that defendant had a reasonable expectation of privacy, that it was defendants voice on the conversations intercepted pursuant to Wiretap #06-214. After the parties submitted the motions on their pleadings, the trial court (Judge Michael A. Tynan) ruled:

I did spend a lot of time on this. I dont pretend to be an expert in this field, but I think that the Hobbs theory is applicable here. I think it is reasonable and common sensible.

The motion to disclose the sealed portion is denied based on the implied not Judge Fidler may find, I am not exactly sure of everything every finding he made because I havent seen what he [Judge Fidler] relied on, but it appears to me that the Hobbs theory is applicable, and it appears that the motion under 1538.5 and 629 is not well taken, and that is denied as well, but it was an interesting read. (Italics added.)

The matter proceeded to trial before Judge Jose I. Sandoval.

3. Discussion

Defendant advances several arguments in support of his contention that the trial courts denial of his motion to disclose the sealed affidavit was error. We consider only one: that the trial court erred because it summarily denied the motion, apparently without an in camera review of the applications or any of the materials relied on by the issuing judge. Given that the trial court explicitly stated, in ruling upon the motion, that it had not seen the material that Judge Fidler relied upon in authorizing the wiretap, the only reasonable inference from this record is that it did not review the sealed affidavit before ruling on the suppression motion. Although the prosecution had offered to provide the sealed material to the trial court for in camera review, nothing in the record indicates that it did so. Consequently, we reject the Attorney Generals argument that the trial courts comments . . . suggest otherwise simply because the judge had indicated he had spent a lot of time on this and had concluded that Hobbs was applicable to sealed affidavits offered to support wiretap applications.

Therefore, the issue is whether the summary denial of the motion was prejudicial error. Because the core of defendants contention is that evidence was admitted in violation of the Fourth Amendment (the evidence being the testimony about and transcripts of the intercepted phone calls), the prosecution must show that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) This familiar rule is a reiteration by the Supreme Court of the standard it set out in Fahy v. Connecticut (1963) 375 U.S. 85, 86-87: The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. More recently, the court has formulated the inquiry as whether the guilty verdict actually rendered in this trial was surely unattributable to the error. [Citation.] (People v. Archer (2000) 82 Cal.App.4th 1380, 1394-1395; see also People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11 [Our state reasonable possibility standard is the same, in substance and effect, as the harmless beyond a reasonable doubt standard of Chapman v. California].) Under any of these formulations, we conclude that the error was harmless beyond a reasonable doubt.

Defendant argues that the prosecutor relied completely on the electronic interceptions to convict [him] at trial. That is because there was no other evidence other than the recordings to establish ultimate facts related to [his] knowledge and involvement in the narcotics transactions. We disagree. Putting aside the evidence of the intercepted phone calls, both direct and circumstantial evidence overwhelming established defendants knowledge of and active involvement in the drug offenses.

The direct evidence consisted of defendants extra judicial statements and his trial testimony. Immediately after being arrested, defendant told Agent Nunnallee that he knew money and drugs were being delivered to his home. Defendant was intimately aware of the criminal operation because he supplied the agent with details of those transactions: there had been four deliveries of money, the last delivery of money had occurred on October 14, and the last drug shipment had arrived on October 10. Further, defendant conceded his active participation in the criminal enterprise. Because the last shipment of drugs was rather large, defendant had told Tiburon where to hide the contraband inside of his house. In addition, defendants trial testimony conceded that he had actively assisted Tiburon with knowledge of the criminal enterprise.

Defendants highly incriminating statements to Agent Nunnallee as well as his trial testimony were consistent with the circumstantial evidence presented to the jury. The quantity of cocaine recovered (60 kilograms) from his home (including his bedroom) and garage was in line with the modus operandi of a criminal operation: hiding a large amount of contraband in a residence and then distributing it for sale from that locale. The police also recovered paraphernalia associated with the sale and transportation of cocaine (scales, plastic bags, and a plastic sealer) from the house and garage. Expert testimony established that a large scale drug operation such as the one behind this enterprise would not store cocaine worth several million dollars in a personal residence without the knowledge and cooperation of the resident. In fact, it would place that amount of contraband only in the home of a person it completely trusted: an individual who knew of the contrabands presence and would not steal either the contraband or the money received for the contraband. Consequently, the homeowner would necessarily be a knowing and active participant in the crimes of possession for sale and transportation of the controlled substance.

Lastly, defendants actions in the hours before the search warrant was executed on October 15 were consistent with that of an active participant in the criminal enterprise. Defendant went back and forth from his home several times that day, either following or accompanying Tiburon. And after a delivery was made to the home during that morning, defendant played the role of the lookout, walking through the neighborhood while communicating on his cell phone.

In light of the evidence set forth in the preceding three paragraphs, we conclude that any error in admitting the evidence of the intercepted phone conversations with defendant was harmless beyond a reasonable doubt. (Compare People v. Siripongs (1988) 45 Cal.3d 548, 567 [error was harmless beyond a reasonable doubt because in light of the other incriminating evidence in this case, [the evidence that should have been suppressed] would not have affected the jurys verdict] with People v. Minjares (1979) 24 Cal.3d 410, 424 [conviction following trial is reversed because illegally seized evidence constituted a substantial part of the prosecutions case].)

To avoid this conclusion, defendant argues that [b]ecause the trial court improperly admitted the recordings of his statements, [he] had no alternative but to take the stand to mitigate his culpability, and his testimony cannot be used to prove that the erroneous admission of the wiretaps did not have a substantial and injurious effect on the jurys verdict. We are not persuaded by this argument for two reasons.

First, it overstates the significance that defendants trial testimony plays in our harmless error analysis. Defendants statements to Agent Nunnalleestatements which were admissible even if defendant had not testifiedwere far more incriminating than his trial testimony because they showed his knowledge and participation in the criminal enterprise for a longer period and were offered without any justification (e.g., he had been threatened).

Second, defendants assertion that the admission of the evidence of the intercepted conversations was the reason he chose to testify is undercut by the record. Given the wealth of incriminating evidence offered against him, particularly the quantity of cocaine found hidden throughout his residence and garage, the expert testimony about the modus operandi of a large scale drug trafficking organization (including the role of the owner of a stash house), and his statements to Agent Nunnallee explicitly conceding his knowledge that money and drugs were being transported to and stored in his home, some explanation was required.[10]

In sum, we reject defendants argument that the denial of his motion compelled him to take the stand and that we may not consider his trial testimony in determining whether the trial courts summary denial of his suppression motion was harmless beyond a reasonable doubt.

B. THE DEFENSE OF DURESS

Defendant raises two related contentions regarding his unsuccessful attempt to raise the defense of duress. First, he urges that he presented substantial evidence to support the defense so that the trial court erred in denying his request to instruct on it. Second, he argues that the trial court prejudicially erred in disallowing as inadmissible hearsay some of the testimony that he offered to support the defense. We reject both contentions.

1. Legal Background About the Defense of Duress

Duress is a defense of statutory origin. ( 26, subd. (6).) It requires a reasonable belief that threats to the defendants life (or that of another) are both imminent and immediate at the time the crime is committed [citations][;] threats of future danger are inadequate to support the defense. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100, italics added.) The duress defense, through its immediacy requirement, negates an element of the crimethe intent to commit the act. The defendant does not have the time to form criminal intent because of immediacy and imminency of the threatened harm and need only raise a reasonable doubt that he acted in the exercise of his free will. (People v. Heath (1989) 207 Cal.App.3d 892, 901.) For that reason, threats of future danger are inadequate to support the defense. Decisions upholding the duress defense have uniformly involved a present and active aggressor threatening immediate danger. [Citation.] A phantasmagoria of future harm such as a threat of death to be carried out at some undefined time, does not support a duress claim. (People v. Petznick (2003) 114 Cal.App.4th 663, 676-677.)

2. The Trial Court Did Not Err In Declining to Instruct About Duress

Defense counsel requested submission of the pattern instruction about the defense of duress, CALCRIM No. 3402. He relied upon defendants testimony that Tiburon told him that he better do what hes telling me to do . . . or else hell kill somebody in my family. The prosecutor opposed the request, correctly explaining that the law requires the instruction only if an immediate threat to life has been made. She characterized Tiburons threat as certainly . . . not immediate. The prosecutor urged the court to instruct, instead, with CALCRIM No. 3403, the pattern instruction about necessity.[11] Defense counsel urged the threat was immediate because Tiburon had told defendant if he did not do something, were going to kill your people. Thats it. Its right then and there. He doesnt say we might do it later, and thats immediate. The trial court ruled that the evidence supported giving the necessity instruction but not the duress instruction.

The trial courts ruling was correct. A trial court is required to grant a request for a duress instruction only if substantial evidence supports the defense. (People v. Petznick, supra, 114 Cal.App.3d at p. 677.) Substantial evidence means that there must be evidence sufficient to deserve consideration by the jury of the defense. (People v. Wilson(2005)36 Cal.4th 309, 331.) The test is not whether any evidence is presented to support the defense, no matter how weak, but whether there is evidence from which a reasonable jury could conclude that the specific facts supporting the instruction exist. (People v. Petznick, supra, 114 Cal.App.4th at p. 677.)

At the core of the defense of duress is the situation of a present and active aggressor threatening immediate danger. (People v. Viera (2005) 35 Cal.4th 264, 290.) Here, Tiburons threat was directed at defendants family but contained no element of immediacy. As defendant himself conceded, Tiburon did not threaten to kill anyone either that day or the next day. Further, defendant never testified that any family members were present when Tiburon made the threat or that the threats were repeated on October 15, the day the cocaine arrived at his house and he assisted Tiburon. Thus, the evidence at most established that two days before the crimes, threats of future harm were made. Even if defendant was reluctant to participate in the crimes, that reluctance did not constitute substantial evidence that he participated as the result of a present and active threat of imminent danger. There was no gun to his head [or that of any family member]. The suggestion that defendants participation was coerced by an imminent threat to . . . life is pure speculation. (People v. Petznick, supra, 114 Cal.App.4th at pp. 677-678.) In sum, the trial court properly refused defendants request to submit a duress instruction. (See also People v. Bacigalupo (1991) 1 Cal.4th 103, 125.)

3. The Trial Court Did Not Abuse Its Discretion In Disallowing Certain Evidence Offered to Support the Defense of Duress

As set forth above, defendant testified that when he confronted Tiburon about the cocaine he had found in Tavos tool box, Tiburon threatened to kill a member of defendants family if he did not cooperate. However, following a hearing conducted outside of the jurys presence in which defendant testified, the court ruled that defendant could not testify that after he (defendant) had confronted Tiburon, Tavo telephoned him that evening and told me to keep my mouth quiet that, you know, everything was going to be all right. To keep my mouth quiet, my mouth shut. In response to a question from the prosecutor, defendant conceded that was the whole conversation he had with Tavo.

The prosecutor raised two objections to allowing defendant to testify about his conversation with Tavo. First, she explained: Theres no threat there. In fact, the statement is everything is going to be all right. Second, she urged it was inadmissible hearsay. Defense counsel responded: Your Honor, I think its clearly related to the same incident, and thats what we are arguing, and thats what we are trying to establish to the jury. Why else would would Tavo call and just want him [defendant] to be a mute just for the sake of it? The trial court ruled that defendant could not testify about the phone call from Tavo, reasoning that Tavos statements did not meet the requirements of the hearsay exception found in Evidence Code section 1250.[12]

In this appeal, defendant argues that the trial courts ruling disallowing the testimony was error because the testimony was not, in fact, hearsay. On that point defendant is correct. Hearsay is evidence of an extrajudicial statement offered to prove the truth of the matter stated. (Evid. Code,  1200, subd. (a).) Consequently, if the statement is offered for some purpose other than proving the fact stated therein, it is not hearsay. (People v. Bolden (1996) 44 Cal.App.4th 707, 714.) An example of an out-court-statement being offered for a nonhearsay purpose is testimony about a declarants statement (here, Tavos statement) offered to show the mental state or attitude of the person who heard it (here, defendant). (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay,  40, pp. 722-723.) This evidence may be introduced over a hearsay objection when the good faith or reasonableness of the recipients belief or conduct is in issue. (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay,  45, pp. 727-729.)

Here, the defense offered the testimony about Tavos statement to show its effect upon defendant, e.g., to explain why defendant felt subject to duress. For that purpose the testimony was not hearsay. But that conclusion does not end the analysis. The prosecutor also argued that the evidence was not relevant. She was correct. Tavos statement did not convey an immediate threat of harm to defendant or his family. Even construed in the most menacing way, the statement was nothing more than a veiled threat that defendant should remain silent about what he had found in Tavos tool box. Tavo did not refer to Tiburons threat and Tavo did not threaten to harm either defendant or any member of his family. Further, in contrast to Tiburons alleged threat, Tavos statement included no direction to defendant to participate in any crime. The statement was, at most, an injunction to remain quiet. Consequently, any error in excluding this evidence was not prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.) That is, it is not reasonably probable that a result more favorable to defendant would have occurred (instruction on duress defense and acquittal on that basis) had the evidence been admitted because the testimony about Tavos statement lacked probative value on the issue for which it was presented (duress). For the same reasons, the ruling precluding the evidence did not violate defendants due process right to present a defense. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.)

C. SENTENCING

1. Factual Background

The probation report indicated that defendant had been convicted in 2001 of the misdemeanor offense of driving with a suspended license. (Veh. Code,  14601.1, subd. (a).) The report incorrectly stated that [b]ased on the amount of cocaine seized in this crime, the defendant is not eligible for formal probation pursuant to 11370.4 HS. The probation officer found defendants insignificant criminal history a mitigating circumstance and the large amount of cocaine recovered an aggravating circumstance. Concluding that the aggravating circumstance outweighed the mitigating circumstance, he recommended a high based state prison sentence.[13]

Prior to the sentencing hearing, the prosecutor submitted a sentencing memorandum requesting a 24-year sentence. Defense counsel did not proffer a sentencing brief, but, instead, submitted letters of support from defendants family and friends.

At the beginning of the hearing, the trial court indicated it had read the parties submissions and the probation report. The court stated it had considered two circumstances in aggravation and two circumstances in mitigation. The former were: (1) the crimes were carried out in a manner indicating planning, sophistication and professionalism and (2) the crimes involved a large amount of contraband. (Cal. Rules of Court, rule 4.421(a)(8) and (a)(10).) The latter were: (1) the defendant, with no apparent predisposition to do so, was induced by others to participate and (2) defendant had an insignificant criminal record. (Cal. Rules of Court, rule 4.423(a)(5) and (b)(1).)

Before stating its tentative ruling, the court noted that defendant is ineligible for probation due to the special allegation pursuant to Health and Safety Code section 11370.4. Defense counsel did not contradict this assertion and never requested a probationary term for his client. The court indicated it would select the transportation conviction as the principal term and impose the midterm of four years with an additional 20-year term for the weight enhancement, resulting in an aggregate term of 24 years.

Defense counsel argued that the trial court should exercise its statutory discretion to strike the weight allegation.[14] In that regard, defense counsel characterized defendant as a minimal player in the drug enterprise, relied on defendants minimum history of criminal contacts, and noted the support that defendant had received from his family. Counsel urged: It seems to me that he [defendant] was taken advantage of [and] put in much more jeopardy than he ever could have imagined. Counsel asked for an aggregate sentence of eight years. The prosecutor argued for a 24-year sentence.

Before imposing its sentence, the trial court explained: Having heard from counsel in response to the courts indicated [sentence], having sat as the trial judge in the trial, the court will impose its indicated. [] Let me just say that the court sees a fair number of cases involving drug use, drug possession, and there are many instances in which this court sees defendants involved in drugs where addiction or other circumstances may motivate that persons involvement in sales. And the court is aware of that, and in many instances has blended in those factors into its sentencing. [] In this case, however, notwithstanding everything that defense counsel has articulately communicated to the court as regards the background of this particular defendants situation, this was an extraordinarily large amount of contraband. The jury found true that special allegation and found him guilty of both counts. [] I take no pleasure in doing this . . . [but] Im going to impose my indicated.[15]

2. Denial of Probation

Defendant, relying upon the probation reports incorrect assertion that he was ineligible for probation and the trial courts statement to the same effect made at the beginning of the hearing, contends that the matter must be remanded for resentencing because the trial court mistakenly believed that it could not grant him probation because the jury had found the weight enhancement to be true (Health & Saf. Code,  11370.4). We are not persuaded.

For one thing, the claim has not been preserved for appellate review because defense counsel never raised it in the trial court. This constitutes a forfeiture of the claim. (People v. Scott (1994) 9 Cal.4th 331, 353.)

In any event, it is not reasonably probable that the trial court would have imposed a more favorable sentence even had defense counsel objected and brought this matter to the courts attention. Defendant is correct that Health and Safety Code section 11370.4 does not preclude a grant of probation, but that point does not end the matter. Section 1203.073, subdivision (b)(1) precludes granting probation to a defendant convicted of possession for sale of 28.5 grams or more of cocaine unless it is an unusual case where the interests of justice would best be served [by a grant of probation]. ( 1203.073, subd. (a).)

Here, the trial court exercised its discretion to deny defense counsels request to strike the weight finding. The request was based upon defense counsels characterization of defendants role as minimal, defendants sparse criminal history, and defendants support by family and friends. These are the same circumstances upon which defense counsel would have relied if he had argued that, pursuant to section 1203.073, subdivision (a), the interests of justice warranted probation. It therefore follows that even had defense counsel clarified the courts misunderstanding about its ability to place defendant on probation and had requested probation under the controlling statute, the court would have denied the request.

3. Cruel and Unusual Punishment

Defendant contends that his sentence of 24 years violates the constitutional prohibitions against cruel and unusual punishment.

The Attorney General first urges that defendants failure to raise any argument of cruel and unusual punishment in the trial court constitutes a forfeiture of any right to appellate review of the claim. We agree. Cruel and unusual punishment arguments, under the federal or California tests, require examination of the offense and the offender. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) This is a fact-based inquiry that must first be litigated in the trial court. If it is not, it is forfeited. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) On that basis alone, we can, and do, reject the contention. However, in order to forestall any future claim that trial counsel was ineffective for failing to raise it below, we discuss the merits of the claim. (Ibid.)

The federal constitutional prohibition on cruel and unusual punishment contains a narrow proportionality principle that applies to noncapital sentences. [Citations.] (Ewing v. California(2003) 538 U.S. 11, 20.) This principle only prohibits sentences that are grossly disproportionate to the crime. (Id. at pp. 23-24.) The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. (Lockyer v. Andrade (2003) 538 U.S. 63, 77.) In making that determination, a court looks at, among other things, the gravity of the offense compared to the harshness of the penalty and the defendants criminal history. (Ewing v. California, supra, 538 U.S. at p. 29.) Under this standard, defendants sentence passes constitutional muster.

The length of defendants sentence is due to the jurys true finding on the weight enhancement. It found that defendant was guilty of transporting more than 40 kilograms (approximately 88 pounds) of cocaine. The Legislature added [Health & Saf. Code] section 11370.4 to punish dealers of large amounts of drugs in direct proportion to the quantity of drugs involved. This intent is evidenced by both the express purpose of the section and the graduated sentence enhancements provided therein. (People v. Pieters (1991) 52 Cal.3d 894, 901.)

The offense at issue was extremely serious. Defendant was part of a large scale drug trafficking organization. The value of the cocaine recovered from defendants home was several million dollars. Drugs and money were transported to and from his home on a regular basis and defendant actively participated in those transactions. In addition to the danger such drug enterprises pose to society at large (see Harmelin v. Michigan (1991) 501 U.S. 957, 1003 discussing the pernicious effects of the drug epidemic in this country (conc. opn. of Kennedy, J.)) defendant, by permitting his home, located in a residential area, to be used as a stash house put his family and neighbors in danger. We therefore reject defendants claim that his role in the criminal enterprise was so minor or low level that his sentence violates the federal constitution.[16] Further, in this context, defendants minimal criminal history does not render this the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality. [Citation.] (Ewing v. California, supra, 538 U.S. at p. 30; see also Harmelin v. Michigan, supra, 501 U.S. 957 [sentence of life without parole for possession of 650 grams of cocaine (less than one kilogram) by a first time offender does not violate the federal constitution].)

A sentence violates the state constitutional ban on cruel or unusual punishment when it is so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424-427; People v. Dillon (1983) 34 Cal.3d 441, 479.) The court: (1) considers the nature of the offense and the offender; (2) compares the punishment to other punishments imposed in California for more serious offenses; and (3) compares the punishment to punishments imposed by other jurisdictions for the same offense.

As for the nature of the offense and the offender, the analysis we set forth in rejecting defendants federal constitutional claim applies equally here.[17] The sentence is proper based upon the current offense in light of defendants role in the criminal enterprise and the dangers posed to society by the crime.

The thrust of defendants contention of a violation of the state bar on cruel or unusual punishment is an interjurisdictional analysis.[18]

First, defendant urges that if he had been prosecuted by the federal government for this offense, the minimum sentence would be only 10 years. (21 U.S.C.  841.) But he overlooks the fact that 10 years is the minimum not the maximum sentence, and, in fact the sentence range is not less than 10 years or more than life[.] (21 U.S.C.  841, subd. (b)(1)(A)(ii)(II).) Hence, comparison to federal sentencing law does not support defendants argument. Next, defendant argues that because of [his] unique history and characteristics, his sentence would have likely been reduced pursuant to the safety valve, a United States Sentencing Guideline (U.S.S.G.) mechanism whereby certain defendants are relieved from a mandatory minimum sentence. (U.S.S.G.  5C1.2.) (Fn. omitted.) We are not persuaded by this completely speculative argument, particularly since the criteria for the safety valve include the finding that the defendant had truthfully provided to the government all information he had about the criminal enterprise. (U.S.S.G.  5C1.2, subd. (a)(5).) Nothing in this record suggests that has happened and, in fact, defendants trial testimony and his statements to his probation officer (see fn. 13, supra) support a contrary conclusion.

Furthermore, defendants argument overlooks the fact, noted by the Attorney General, that other states do provide for lengthy sentences for possession of a large quantity of contraband. In Michigan, possession of more than 1,000 grams of cocaine can by punishable by life in prison (MCL  333.7403, subd. (2)(a)(i)); in Florida, possession of more than 400 grams but less than 150 kilograms of cocaine carries a mandatory minimum sentence of 15 years (F.S.A.  893.135, subd. (1)(b)(1)(c)); and in Texas, possession of 400 grams or more of cocaine is punishable by 10 to 99 years in prison or life (Tex. Health & Saf. Code,  481.115, subds. (a), (f); 481.102, subd. (3)(D)). In any event, even were we to find that Californias punishment scheme is among the most extreme [that finding would] not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require conforming our Penal Code to the majority rule or the least common denominator of penalties nationwide. [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)

4. Credit for Time Served

Lastly, defendant contends, and the Attorney General concedes, that he is entitled to additional presentence custody credit. At sentencing, defense counsel stated defendant was entitled to 622 days: 415 days of actual custody and 207 days of conduct credit. The trial court awarded custody credit of that amount. However, defense counsels calculation was incorrect. Defendant was arrested on March 21, 2007 and sentenced on May 29, 2008. He therefore was entitled to 436 days of actual custody credit and 218 days of conduct credit for a total of 654 days. We direct preparation of an amended abstract of judgment to reflect this.

DISPOSITION

The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting that defendant Eduardo Fernandez is entitled to 654 days of credits. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All subsequent undesignated statutory references are to the Penal Code.

[2] Tiburon lived in an apartment complex two miles from defendants home.

[3] All dates refer to 2006 unless stated otherwise.

[4] Defendant never challenged the validity of either the search warrant or its execution.

[5] Defendant testified that Tavos full name is Octavio Garcia. The record does NOT establish whether this Tavo is the same Tavo who Agent Nunnallee testified ran the criminal organization in Mexico.

[6] The trial court submitted the pattern CALCRIM instructions about aiding and abetting. (CALCRIM Nos. 400 & 401.)

[7] Evidence Code section 1041 codifies law enforcements privilege to refuse to disclose the identity of a confidential informant. Evidence Code section 1042, subdivision (b), provides that where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it.

[8] Defendant did not file a motion to suppress the evidence (60 kilograms of cocaine and paraphernalia associated with drug sales) seized from his home pursuant to the execution of the search warrant.

[9] The prosecutors opposition papers stated: A (redacted) copy of the wiretap, including the application, affidavit and order, has been submitted to the Court as an attachment to Defendants moving papers, and accordingly is not attached here. If any of the documents related to Wiretap #06-214 were, in fact, submitted to the trial court, they are not included in the record on appeal, an omission recognized by both defendant and the Attorney General in their briefs.

[10] In light of the above analysis, we reject defendants reliance upon Nguyen v. McGrath (N.D.Cal. 2004) 323 F.Supp.2d 1007 to support his claim that we cannot consider his trial testimony in deciding whether the error was harmless beyond a reasonable dou