Filed
3/14/13 P. v. Reyes
CA2/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND REYES, III,
Defendant and Appellant.
B232396
(Los Angeles
County
Super. Ct.
No. VA104665)
APPEAL from a judgment of the Superior Court of
County, John A. Torribo, Judge. Modified, and as modified, affirmed.
Carlo Andreani for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Paul M. Roadarmel, Jr. and William N. Frank, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
A jury
found defendant and appellant Raymond Reyes, III guilty of one count of heroin
possession. After the trial court found
true prior convictions and denied his Romero
years to life under the Three Strikes law.
Reyes now contends that the court abused its discretion by denying his
violates federal and state constitutional
prohibitions against cruel and unusual punishment,
and that his constitutional right to present a defense was denied when the
court refused to compel the attendance of in-custody witnesses. We reject these contentions and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
While
conducting an unrelated investigation on February 26, 2008, a detective came into contact with
Reyes, whose physical symptoms indicated he was under the influence of heroin
or opiates. After finding a key to a
motel room in Reyes’s pocket, detectives searched the room and found, in a
man’s jacket, two hypodermic needles that appeared to be used, because they contained
a brown liquid resembling tar heroin and because blood residue was on the
needles. Inside a hat was a plastic
baggie containing what tests confirmed to be 0.31 grams of heroin.
While in
the booking area of the police station, Reyes asked Detective Gary Sloan, a Los
Angeles County Sheriff’s Department gang investigator, why he wasn’t being
given a ticket and released. The
detective told him a “20†had been found in his motel room, and Reyes said,
“ ‘Oh, yeah.’ â€
II. Procedural background.
On November 17, 2010, a jury found
Reyes guilty of count 1, possession of heroin (Health & Saf. Code, § 11350,
subd. (a)).
title="">[3] After a court trial on alleged priors, the
court found that Reyes had suffered two prior first degree burglary convictions
and denied his Romero motion to
strike a prior. He was therefore
sentenced to 25 years to life under the Three Strikes law.
DISCUSSION
I. The
Romero motion.
Reyes
contends that the trial court improperly considered an uncharged burglary and
the testimony of a custodial witness
in denying his Romero motion. We disagree.
A.
on the motion.
The
Before
trial, Reyes filed a Romero motion. It detailed Reyes’s criminal history: convictions for drug-related crimes (none for
sale) in 1983, 1987, and 1997; misdemeanor forgery in 1988; misdemeanor
burglary in 1988; and felony burglary convictions in 1989 and in 1992. The 1992 felony burglary was his last felony
conviction. In 2000, he possessed a
controlled substance in prison, and the matter was handled
administratively. In 2007, he was
charged with possessing a controlled substance (Health & Saf. Code, §
11350, subd. (a)), and it was treated as a parole violation.
The motion
also detailed Reyes’s background. His drug
and alcohol abuse began when he was 13.
After graduating from high school in 1978, he enlisted in the army,
serving four years of active duty and three years in an Advanced Development
Program acting as a substitute for service members on leave. He was promoted to E-5 Sergeant and
supervised over nine men. During this
time he also worked for Rockwell, Int., as a flightline mechanic. In 1981 he was Soldier of the Month. Reyes was honorably discharged in 1987.
While in
the army, Reyes began abusing heroin, and he committed the 1988 and 1992
burglaries to support his addiction. In
prison, he joined Narcotics Anonymous, which helped, although he had some
relapses. Also while in prison, he
obtained his GED in 2004. After being
released from prison, he became a certified forklift operator in 2005, while
also working for landscaping companies.
He paid income taxes. He attended
a drug-counseling program for four years, mentored young people, and
volunteered at Sober International, where he was an example to the youth in the
program about the dangers of drugs and gangs.
Reyes contributes money to his family, which
includes three adult children and his estranged wife.
hearing on the Romero motion.
At the
sentencing hearing, the trial court initially noted that Reyes’s last strike
conviction was in 1992, although he’d possessed narcotics in prison. He had no documented history of violence.
In support
of the motion, Daniel Garcia testified that Reyes volunteered at a counseling
center for at-risk youth and was a role model to them. Patricia Ann Castorena similarly testified
that Reyes is a good person, whom she does not know to be violent.
To support the opposition to the
Enriquez testified. In 2007-2008,
Detective Sloan was part of a federal task force targeting the Varrio
Hawaiian Gardens
gang. Based on his investigations, which
included wire taps of telephone calls from the middle of 2007 to February 2008,
it was his opinion that Reyes was directly related to the gang and a direct
affiliate of the Mexican Mafia prison gang.
Detective
Sloan investigated Reyes for a 2007 residential burglary, which did not result
in a criminal filing due to mishandling by detectives. The 92-year-old victim saw Reyes taking items
out of the victim’s house. Reyes drove
away from the burglary in the same car that police were surveilling and that he
was driving at the time of his arrest in this case.
Rene
Enriquez, a member of the Mexican Mafia for 17 years until quitting in 2002,
was serving multiple life sentences for murder.
Enriquez first met Reyes in prison in 2000 or 2001. Reyes was then a member of Varrio
Hawaiian Gardens
gang and his brother, Gabriel Reyes, was trying to join the Mexican Mafia. Because Reyes was going to be paroled,
Enriquez and his copartner, Darryl Baca, recruited him to expand their business
in Hawaiian Gardens. Another reason Enriquez and Baca selected
Reyes was his army record, he was personable, and they could kill his brother
if Reyes stepped out of line. Enriquez
and Baca made Reyes their crew leader, the person who represents on the streets
the imprisoned Mexican Mafia member.
They gave Reyes instructions, including to murder a gang member who had
fallen into disfavor with the Mexican Mafia.
The
prosecutor played audio clips of phone calls made in 2007 and 2008 between
Reyes and various people, including Varrio
Hawaiian Gardens
gang members, that Enriquez interpreted as showing that Reyes was actively
working for the Mexican Mafia. Enriquez
offered the opinion that Reyes, as of 2008, was an active participant in the
Mexican Mafia.
After
hearing this testimony, the trial court commented that it had, prior to the
People’s evidence, been inclined to strike a strike, because Reyes had no
documented incidents of violence, convictions or arrests, and Reyes had been
essentially crime free since 1992, except for the narcotics possession. “But we are now faced with the evidence that
has transpired over the last four or five years which creates a situation where
the People would be arguing . . . this is not a person that in fact has not
remained crime free.†The court also
noted that in one of the audio clips, Reyes implicated himself in the 2007
uncharged first degree residential burglary.
The trial
court denied the motion, stating: “Well,
the court is not going to strike the strikes because the court believes that
the clear and convincing evidence is that in 2007 he committed a residential
burglary. [¶] Now, a residential burglary is a classic
Three-Strike law, invasion of someone’s home.
So even without the Mexican Mafia information, I think that precludes
the court from really finding––following Williams,
that he falls outside the spirit of the Three-Strikes law. [¶]
Because his own admissions clearly corroborate that he was the burglar
in question and that it occurred in 2007.
So without even taking into consideration the other factors, that alone
I think is sufficient to force the court to say that he does not qualify. [¶]
Insofar as the arguments of uncorroborated comments by the People’s
witness[,] Mr. Enriquez, the unequivocal evidence comes from Mr. Reyes’ mouth
alone that he is involved in some manner or way with the Mexican Mafia. I don’t think I need to extrapolate . . . whether
he is a runner or a made member, that really becomes irrelevant. The fact is that he is involved in criminal
activity on an ongoing basis whether it’s as a freelancer or a member of
Mexican Mafia. He has not changed his
lifestyle and he is not the victim of drug abuse. So the motion to strike the strikes is
denied.â€
B. The
trial court did not abuse its discretion.
Reyes
contends that the trial court abused its discretion by considering the 2007
uncharged residential burglary and Enriquez’s testimony.
In the
furtherance of justice, a trial court may strike or dismiss a prior conviction
allegation. (Pen. Code, § 1385, subd.
(a); Romero, supra, 13 Cal.4th at p.
504.) We review a trial court’s refusal
to strike a prior conviction allegation under the deferential abuse of
discretion standard. (
374-375.) Under that standard, the party
seeking reversal must “ ‘clearly show that the sentencing decision was
irrational or arbitrary.’ †(
977.) It is not enough to show that
reasonable people might disagree about whether to strike a prior
conviction. (Carmony, at p. 378.) Only
extraordinary circumstances justify a finding that a career criminal is outside
the Three Strikes law. (
Therefore, “the circumstances where no reasonable people could disagree
that the criminal falls outside the spirit of the [T]hree [S]trikes scheme must
be even more extraordinary.†(
When
considering whether to strike prior convictions, the relevant factors a court
must consider are “whether, in light of the nature and circumstances of his
present felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or more serious
and/or violent felonies.†(
148, 161.) The Three Strikes law “not
only establishes a sentencing norm, it carefully circumscribes the trial
court’s power to depart from this norm . . . . [T]he law creates a strong presumption that
any sentence that conforms to these sentencing norms is both rational and
proper.†(People v. Carmony, supra, 33 Cal.4th at p. 378.) We presume the trial court considered all of
the relevant factors in the absence of an affirmative record to the
contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Here, the
trial court cited the 2007 uncharged residential
burglary as a factor in its refusal to strike a prior. Reyes argues that the court could not
consider that burglary because it was insufficiently proven and violated the
corpus delicti rule. “In every criminal
trial, the prosecution must prove the corpus delicti, or the body of the crime
itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal
agency as its cause.†(
1161, 1168-1169.) The prosecution cannot
satisfy this burden by relying exclusively on the extrajudicial statements,
confessions, or admissions of the defendant.
(Ibid.) The rule is designed to protect a person from
being falsely convicted, by his or her untested words alone, of a crime that
never happened. (People v. Davis (2008) 168 Cal.App.4th 617, 634.) The corpus delicti rule is not applicable to
uncharged act evidence, but it does apply to unadjudicated offenses proffered
as aggravating evidence at the penalty phase of a capital trial. (Id.
Reyes
contends that the corpus delicti rule applies at a hearing on a motion to
strike a prior under Romero, because
the Romero hearing is analogous to
the penalty phase of a capital trial. It
is not. At the penalty phase of a
capital trial, the issue is what will be the penalty. At a Romero
hearing, the penalty has been set under the Three Strikes law, and the
issue is whether the court will mitigate that penalty by striking a prior.
In any
event, even if the corpus delicti rule applied to the hearing on Reyes’s
wiretaps, that he committed the residential burglary was independently
corroborated. Detective Sloan testified
that the Los Alamitos Police Department investigated the burglary. The victim saw Reyes take items out of the victim’s
home. The victim took down the license
plate number of the car the burglar got into.
The car was registered to Reyes’s girlfriend, and it was the car Reyes
drove and that Detective Sloan was surveilling as a part of the federal
investigation.
Reyes next
contends that Penal Code section 1111.5 precluded the trial court from
considering Enriquez’s testimony. That
section provides that a defendant may not be convicted, a special circumstance
found true, or a fact be used in aggravation based on the uncorroborated
testimony of an in-custody informant.
(§ 1111.5.)
name="_ftnref5" title="">[5] The section, however, became effective
January 1, 2012, after Reyes’s crimes and trial, and the general rule is that
no part of the Penal Code is retroactive unless expressly so declared. (Pen. Code, § 3; People v. Brown (2012) 54 Cal.4th 314, 319.) Moreover, the section is inapplicable at a
hearing on a Romero motion because
the evidence is not used to convict the defendant, to find true a special
circumstance or to aggravate the sentence.
Such evidence would be used, as here, not to mitigate a Three Strikes sentence.
Reyes’s
final reason why his Three Strikes sentence was an abuse of discretion is the
trial court failed to consider several important factors, namely, the minor
nature of the commitment offense (heroin possession) and Reyes’s cooperative
confession of guilt. It is clear,
however, that the court did consider these factors, because the court said it
had been initially inclined to strike one of Reyes’s convictions. But, after hearing the People’s evidence, the
court concluded, under Williams, that
Reyes fell “outside the spirit of the Three Strikes law.†Under Williams,
a court may consider the particulars of a defendant’s background,
character, and prospects. The People’s
evidence that Reyes is involved with the Mexican Mafia certainly was relevant
to those factors.
We
therefore conclude that the trial court did not abuse its discretion by denying
Reyes’s Romero motion.
C. The
impact of the passage of Proposition 36.
After oral
argument on this matter, we granted Reyes’s request to vacate submission and to
file supplemental briefing on the impact of the passage of Proposition 36
on his Three Strikes sentence.
On November 6, 2012, the voters
approved Proposition 36, the Three Strikes Reform Act of 2012 (hereafter the
Act), which amended Penal Code sections 667 and 1170.12 and added section
1170.126 to the Penal Code. The Act’s
effective date was November 7, 2012.
Before the Act’s passage, the Three Strikes law provided that a
recidivist with two or more prior strikes who is convicted of a new felony was
subject to an indeterminate life sentence.
(People v. Yearwood (2013) 213
Cal.App.4th 161.) The Act now reserves
“the life sentence for cases where the current crime is a serious or violent
felony or the prosecution has pled and proved an enumerated disqualifying
factor.[
sentenced as a second strike offender.â€
(Yearwood, at
pp. 167-168; see also, Pen. Code, §§ 667, subd. (e)(2)(C) [a
defendant with two prior strikes whose current conviction is not for a serious
or violent felony shall be sentenced as a second striker], 1170.12, subd.
(c)(2)(C) [same].)
The Act also created a procedure
for “persons presently serving an indeterminate term of imprisonment†under the
former Three Strikes law “whose sentence under this [A]ct would not have been
an indeterminate life sentence.†(Pen.
Code, § 1170.126, subd. (a).) Such
a person may file, before the court that entered the judgment of conviction, a
“petition for a recall of sentence†within two years of the date of the Act or
at a later date on a showing of good cause.
(§ 1170.126, subd. (b).) A
petitioner is eligible for resentencing if (1) he or she is serving an
indeterminate term of life imprisonment for a conviction of felony or felonies
that are not serious and/or violent (Pen. Code, §§ 667.5, 1192.7, subd.
(c)); (2) his or her current sentence was not imposed for disqualifying
offenses specified in Penal Code sections 667 subdivision (e)(2)(C) and
1170.12, subdivision (c)(2)(C); and (3) he or she has no prior convictions for
offenses listed in sections 667, subdivision (e)(2)(C)(iv) and 1170.12,
subdivision (c)(2)(C)(iv).
(§ 1170.126, subd. (e).)
If a trial court determines that
the petitioner satisfies this criteria, then he or she shall be resentenced as
a second striker, “unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public
safety.†(Pen. Code, § 1170.126,
subd. (f).) In exercising its
discretion, the trial court may consider the petitioner’s criminal conviction
history, disciplinary record and record of rehabilitation while incarcerated,
and any other evidence the court, in its discretion, determines to be
relevant. (§ 1170.126, subd. (g).)
Reyes contends that he should be
resentenced as a second striker, under the new provisions of Penal Code
sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C), rather
than have to petition for a recall of his sentence under the newly enacted
Penal Code section 1170.126. He bases
his request to be resentenced on In re
Estrada (1965) 63 Cal.2d 740, 744, 746, which held that, absent indication
of a contrary intent, the Legislature is presumed to intend retroactive
application of legislation lessening punishment. The Act, however, is not silent on
retroactivity. Rather, section 1170.126
“operates as the functional equivalent of a saving clause.†(People
v. Yearwood, supra, 213 Cal.App.4th at pp. 168, 172.) “Section 1170.126 is not ambiguous. The voters intended a petition for recall to
be the sole remedy available under the Act for prisoners who were serving an
indeterminate life sentence imposed under the former [T]hree [S]trikes law on
the Act’s effective dates without regard to the finality of the judgment.†(Yearwood,
at p. 172.)
By virtue of Penal Code section
1170.126, the Act applies in a limited manner to prisoners serving Three
Strikes sentences when the Act was enacted, and establishes a specific
procedure for a defendant to follow, namely, file a petition for recall in the
trial court. Reyes’s remedy therefore is
not in this court. His remedy, if any,
is in the trial court, where he must follow the procedure in section 1170.126.
II. Cruel and/or unusual punishment.
Reyes
contends that his Three Strikes sentence of 25 years to life is cruel and
unusual punishment in violation of the Eighth Amendment of the United States
Constitution and cruel or unusual punishment under our state Constitution (Cal.
Const., art. I, § 17). He did not raise
this objection below. It is forfeited.
v. Kelley (1997) 52 Cal.App.4th 568, 583.)
Even if not
waived, we would reject the contentions.
Whether a punishment is cruel and unusual is a question of law, but we
review the underlying facts in the light most favorable to the judgment. (People
v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A punishment for a term of years violates the
Eighth Amendment to the United States Constitution if it is an “ ‘extreme
sentence[]’ †that is “ ‘ “grossly disproportionate†to the
crime.’ [Citation.]†(Ewing
v. California (2003) 538 U.S. 11, 23 (plur. opn. of O’Connor, J.);
72.) The
“ ‘narrow proportionality principle’ †applicable to noncapital
sentences (Ewing, at p. 20), but does
not require strict proportionality between crime and sentence (
challenges to the proportionality of particular sentences have been exceedingly
rare.’ [Citation.]†(Id.
at p. 21; see also Lockyer, at
p. 73; People v. Haller (2009)
174 Cal.App.4th 1080, 1087-1088.)
A
punishment violates the state Constitution if “it is so disproportionate to the
crime for which it is inflicted that it shocks the conscience and offends
fundamental notions of human dignity.†(
fn. omitted.) The defendant must
demonstrate the punishment is disproportionate in light of (1) the offense and
defendant’s background, (2) more serious offenses, or (3) similar offenses in
other jurisdictions. (
“considerable burden†to show the sentence is disproportionate to the level of
culpability (People v. Wingo (1975)
14 Cal.3d 169, 174), “[f]indings of disproportionality have occurred with
exquisite rarity in the case law†(People
v. Weddle (1991) 1 Cal.App.4th 1190, 1196).
The United
States Supreme Court has repeatedly found, under circumstances analogous to
these, that third strike sentences are not cruel and unusual punishment under
the federal Constitution. (See, e.g.,
[third strike sentence for two counts of petty theft with a prior for stealing,
on separate occasions, merchandise valued at $84.70 and $68.84];
[third strike sentence for shoplifting golf clubs worth $1,200]; see
[life without parole sentence for possession of cocaine was not cruel and unusual].)
That
“California’s punishment scheme is among the most extreme does not compel the
conclusion that it is unconstitutionally cruel or unusual.†(People
v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) California is not required “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.†(Ibid.) Recidivism therefore
continues to be a legitimate sentencing consideration. (See People
v. Romero (2002) 99 Cal.App.4th 1418, 1432 [third strike sentence for
felony petty theft of a magazine not cruel or unusual punishment];
Reyes,
however, analogizes his case to, among others, People v. Carmony (2005) 127 Cal.App.4th 1066. In Carmony,
the defendant, a sex offender, registered his correct address with police one
month before his birthday, as required by law, but he failed to update his
registration with the same information within five working days of his
birthday. (Id. at p. 1071.) He later
pleaded guilty to failing to register as a sex offender and admitted three
prior serious or violent felony convictions.
(Ibid.) The Court of Appeal deemed the Three Strikes
sentence unconstitutional, in part because Carmony’s current offense was “no
more than a harmless technical violation of a regulatory law.†(Id.
at pp. 1072, 1077; cf. People v. Poslof
(2005) 126 Cal.App.4th 92 [three-strike life term for failing to register as
sex offender not unconstitutional].)
But Reyes
did not simply neglect to comply with a regulatory requirement. He possessed heroin. His crime may not have been “serious†or
“violent,†but his conduct certainly presented a danger to the public. In fact, Reyes admitted in his
prior burglary felonies to support his addiction. We therefore do not agree that Reyes’s Three
Strikes sentence, although harsh, constitutes cruel and unusual punishment.
III. Witnesses.
Reyes next
contends that the trial court’s refusal to compel the attendance of two
in-custody witnesses violated his right to present a defense, under the Sixth
and Fourteenth Amendments of the United States Constitution. We disagree.
The federal
due process clause does not extend the same evidentiary protections at
sentencing proceedings as exist at the trial, and any purported right of
confrontation does not derive from the Sixth and Fourteenth Amendments. (People
v. Arbuckle (1978) 22 Cal.3d 749, 754.)
Rather, a defendant is entitled only to a sentencing hearing that is
fundamentally fair. (
Reyes’s
sentencing hearing was not rendered fundamentally unfair by the trial court’s
refusal to compel Baca’s and Gabriel Reyes’s attendance as witnesses. At the hearing on Reyes’s
defense counsel asked to have Baca and Reyes “pulled down†from Pelican Bay
prison. The trial court said that per
court policy it would not bring prisoners from state prison without an express
declaration under seal showing why they were pertinent or necessary. The court noted that during an unreported ex
parte hearing it had denied the request without prejudice after hearing the
defense offer of proof.
Defense
counsel explained: “In essence, Mr.
Enriquez spoke about orders that Mr. Reyes was allegedly receiving and
following after Mr. Enriquez had defected from the Mexican Mafia. It’s our contention that if we were to have
Mr. Baca or Mr. Reyes, . . . that they would be able to indicate
that since 2002 or since Mr. Enriquez’s defection from the ‘Eme’ that there’s been no contact
between, at least with Mr. Baca, between him and Raymond Reyes.
“The
court: You mean Mr. Enriquez?
“[Defense
counsel]: No. Between Mr. Baca and Raymond Reyes.
“The
court: There’s been no evidence offered
that there has been.
“[Defense
counsel]: No, but Mr. Enriquez spoke
about the fact, he surmised or kind of speculated, that Mr. Reyes was following
orders. Because all the clips that he
talked about yesterday were post his defection from the Mexican Mafia.
“The
court: That’s correct.
“[Defense
counsel]: So the idea would be is that
Mr. Baca would be in a position to say that he was––he being a remaining
Mexican Mafia head – was not ordering Mr. Reyes to do anything, nor was he
receiving any contact from Mr. Reyes in furtherance of Mafia activities, which
would be contrary to the testimony of Mr. Enriquez.
“The
court: Mr. Enriquez didn’t really
testify to that. He just testified to
what the phone calls were, and what they meant in terms of some of the lingo or
argot that was being used. He didn’t attribute
orders to anybody. He just said that’s
the way the system works. He even said,
he even testified that the crew chief is an independent operator and can make
these decisions without any orders. I
don’t think any of the proffered testimony is relevant or would rebut any of
the inferences argued by the People. Mr.
Enriquez was quite clear that he had no contact with any of the Mexican Mafia
since his walk away and so there’s nothing to rebut there. So the request is denied.â€
The request
was properly denied. Baca’s and Gabriel
Reyes’s proposed testimony was irrelevant, based on the defense offer of
proof. (See generally, Evid. Code, § 210
[only relevant evidence is admissible]; People
v. Cornwell (2005) 37 Cal.4th 50, 82 [a state court’s application of
ordinary rules of evidence generally does not infringe upon a defendant’s right
to present a defense], disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The defense argued that Baca’s and Gabriel
Reyes’s testimony was relevant to show that there had been no contact between
Reyes and Baca, which would tend to show that Reyes was not involved with the
Mexican Mafia. Enriquez, however, did
not say there was such contact. Enriquez
testified that he and Baca recruited Reyes in 2000 or 2001 and gave him
orders. After 2002, Enriquez defected
from the Mexican Mafia and had no contact with Reyes. Although Enriquez listened to the 2007-2008
audio clips of Reyes speaking to other gang members, Enriquez merely
interpreted them. He did not say that
Baca was continuing to give Reyes orders in 2007-2008. The trial court therefore properly denied the
request to have Baca and Gabriel Reyes brought from state prison to rebut
nonexistent testimony.
DISPOSITION
The clerk of the superior court is
directed to correct the abstract of judgment to note that defendant and
appellant was sentenced under the Three Strikes law and to forward the
corrected abstract to the Department of
Corrections. The judgment is
otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ALDRICH,
J.
We concur:
KLEIN, P. J.
CROSKEY, J.
title="">[1]
People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (hereafter Romero).
United States Constitution prohibits cruel and unusual punishment, and the
California Constitution prohibits cruel or unusual punishment.
