Filed 3/14/13 P. v. Reyes CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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,                                                          B232396

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA104665)
         v.

RAYMOND REYES, III,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles 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
Romero1 motion, the court sentenced him to 25 years to life under the Three Strikes law.
Reyes now contends that the court abused its discretion by denying his Romero motion,
that his sentence violates federal and state constitutional prohibitions against cruel and
unusual punishment,2 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.’ ”




1
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (hereafter Romero).
2
       The United States Constitution prohibits cruel and unusual punishment, and the
California Constitution prohibits cruel or unusual punishment.

                                              2
II.    Procedural background.
       On November 17, 2010, a jury found Reyes guilty of count 1, possession of heroin
(Health & Saf. Code, § 11350, subd. (a)).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.4
                                       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. Reyes’s Romero motion and the hearing on the motion.
              1. The Romero motion.
       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


3
       A first trial ended in a mistrial after the jury could not reach a verdict.
4
       The abstract of judgment fails to note that Reyes was sentenced under the Three
Strikes law, and it therefore must be corrected.

                                               3
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.
              2.      The 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 Romero motion, Detective Sloan and Rene
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



                                              4
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

                                               5
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.”
       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. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.)
Under that standard, the party seeking reversal must “ ‘clearly show that the sentencing
decision was irrational or arbitrary.’ ” (People v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 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.
(Ibid.) 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.” (Ibid.)



                                              6
        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.” (People v. Williams
(1998) 17 Cal.4th 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.” (People v. Alvarez (2002) 27 Cal.4th 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. at p. 638;
People v. Fuiava (2012) 53 Cal.4th 622, 642.)
        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

                                               7
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
Romero motion, it was satisfied. Reyes’s admission, captured in one of the 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.)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.


5
       The section also provides: “The testimony of an in-custody informant shall be
corroborated by other evidence that connects the defendant with the commission of the
offense, the special circumstance, or the evidence offered in aggravation to which the in-
custody informant testifies. Corroboration is not sufficient if it merely shows the
commission of the offense or the special circumstance or the circumstance in
aggravation. Corroboration of an in-custody informant shall not be provided by the
testimony of another in-custody informant unless the party calling the in-custody
informant as a witness establishes by a preponderance of the evidence that the in-custody
informant has not communicated with another in-custody informant on the subject of the
testimony.” (Pen. Code, § 1111.5, subd. (a).)

                                               8
       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.[6] In all other cases, the recidivist will be sentenced as a second strike offender.”

6
       The prosecutor may plead and prove, for example, that the current offense is a
controlled substance charge in which an allegation under Health and Safety Code section
11370.4 or 11379.8 was admitted or found true; the current offense is a felony sex
offense under Penal Code section 261.5 or 262 or is a felony resulting in mandatory
registration as a sex offender, with specified exceptions; the defendant used a firearm or
deadly weapon or intended to cause great bodily injury during the commission of the

                                              9
(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

current offense; and the defendant suffered a prior conviction for specified serious and/or
violent felonies. (Pen. Code, § 1170.12, subd. (c)(2)(C)(i)-(iv).)

                                               10
(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.7 (People 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

7
        Because we conclude that Reyes’s sentence was not cruel and unusual
punishment, his ineffective assistance of counsel claim, based on his trial counsel’s
failure to object, fails.

                                              11
O’Connor, J.); Lockyer v. Andrade (2003) 538 U.S. 63, 72.) The Eighth Amendment
contains a “ ‘narrow proportionality principle’ ” applicable to noncapital sentences
(Ewing, at p. 20), but does not require strict proportionality between crime and sentence
(id. at p. 23). Thus, in a noncapital case, “ ‘successful 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.” (In re Lynch (1972) 8 Cal.3d 410, 424, 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. (Id. at pp. 429-437.) Because the defendant must overcome a
“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., Lockyer v. Andrade, supra, 538 U.S. 63 [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]; Ewing v. California, supra, 538 U.S. 11 [third
strike sentence for shoplifting golf clubs worth $1,200]; see Harmelin v. Michigan (1991)
501 U.S. 957 [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.’

                                             12
[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]; Martinez, at p. 1516.)
       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 Romero motion
that he committed 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



                                              13
Cal.3d 749, 754.) Rather, a defendant is entitled only to a sentencing hearing that is
fundamentally fair. (Ibid.)
       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 Romero motion, after Enriquez testified, 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.



                                             14
       “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.”
       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.




                                             15
                                     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.




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