P. v. Guerra

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Filed 11/21/06 P. v. Guerra CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A112203
v. (Lake County
Super. Ct. No. CR906064)
ORION GUERRA,
Defendant and Appellant.
_______________________________________/
Orion Guerra appeals from a judgment entered after a jury convicted him of
driving recklessly while evading a police officer (Veh. Code, § 2800.2), resisting arrest,
(Pen. Code, § 148, subd. (a)(1))1 driving while his license was suspended for driving
under the influence (Veh. Code, § 14601.2), and driving while his license was suspended
pursuant to Vehicle Code sections 13353 and 13353.2 (Veh. Code, § 14601.5). He
contends (1) the trial court erred when it admitted certain evidence, and (2) the court
sentenced him incorrectly. We reject these arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 7, 2005, near 2:30 p.m. Clearlake Police Officer Timothy Hobbs was
on patrol when he saw a red Chevy Blazer driving so fast that it was throwing gravel into
1 Unless otherwise indicated, all further section references will be to the Penal
Code.

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the air. Hobbs followed the Blazer as it drove wildly through the streets of Clearlake.
When the Blazer crashed into a tree, Hobbs watched appellant exit the vehicle and run
away.
Hobbs recognized appellant from a prior contact. He and other officers went to
appellant’s home hoping to find him. When the officers entered, they saw someone run
from the bathroom to a bedroom. The officers entered the bedroom, found appellant, and
placed him in handcuffs.
Based on these facts, an information was filed charging appellant with, inter alia,
the offenses we have described. As to the first count, the information also alleged
appellant had served two prior prison terms within the meaning of section 667.5,
subdivision (b).
The case proceeded to a jury trial where the prosecution presented the evidence we
have set forth above. Appellant presented a mistaken identity defense. His counsel
denied appellant was the one who was driving the car on the day in question.
The jury rejected this defense and convicted appellant. In a court trial that
followed, the court found the prior prison term allegations to be true. Subsequently, the
court sentenced appellant to three years in state prison for violating Vehicle Code section
2800.2, plus an additional year for each of the prior prison term findings.
II. DISCUSSION
A. Admission of Evidence
To prove the prior prison term allegations, the prosecutor proposed, and the court
admitted into evidence, certified copies of judgments that showed appellant had been
convicted of a felony in Modoc County in 1994 and was sentenced to two years in state
prison; and that appellant had been convicted of a felony in Lake County in 1998 and was
sentenced to three years in prison. To establish that appellant had been in prison custody
within the past five years, and that the wash-out provision of section 667.5, subdivision
(b) did not apply,2 the prosecutor asked the court to admit a certified “rap sheet” from the
2 Section 667.5, subdivision (b) states, in part, “. . . where the new offense is any
felony for which a prison sentence is imposed, in addition and consecutive to any other

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California Law Enforcement Telecommunications System (CLETS). Defense counsel
objected to the CLETS printout arguing it was inadmissible hearsay. The court overruled
the objection and admitted the printout.
Appellant now contends the trial court erred when it admitted the CLETS printout.
Conceding that the court’s hearsay ruling was correct under the state of the law before the
United States Supreme Court’s decision in Crawford v. Washington (2004) 541 U.S. 36
(hereafter Crawford), (see People v. Dunlap (1993) 18 Cal.App.4th 1468, 1476-1481),
appellant tries a new tack. He contends admission of the CLETS printout violated his
Sixth Amendment right to confront the witnesses against him as interpreted by Crawford.
We need not address this argument because appellant did not raise it in the court
below. It is well established that claims “based on statutory violations, as well as claims
based on violations of fundamental constitutional rights” are forfeited if not raised below.
(People v. Kennedy (2005) 36 Cal.4th 595, 612.) This rule applies equally to any claim
on appeal that the evidence was erroneously admitted on grounds other than those
asserted at trial. “When an objection is made to proposed evidence, the specific ground
of the objection must be stated. The appellate court’s review of the trial court’s
admission of evidence is then limited to the stated ground for the objection.” (Ibid.)
Applying this principle, our Supreme Court has ruled specifically that an objection on
hearsay grounds is insufficient to preserve for purposes of appeal an argument based on
an alleged violation of the defendant’s confrontation rights. (People v. Burgener (2003)
29 Cal.4th 833, 869.)
As directed by our Supreme Court, we decline to address appellant’s confrontation
argument because he did not raise it in the court below.
Appellant contends the hearsay objection he asserted was adequate to preserve his
confrontation argument under the authority of People v. Partida (2005) 37 Cal.4th 428.
prison terms therefor, the court shall impose a one-year term for each prior separate
prison term served for any felony; provided that no additional term shall be imposed
under this subdivision for any prison term served prior to a period of five years in which

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In Partida, the defendant argued in the trial court that certain evidence should have been
excluded under Evidence Code section 352. On appeal, he argued the court’s erroneous
admission of the evidence under Evidence Code section 352 resulted in a violation of his
due process rights. The Partida court ruled the defendant could validly raise the due
process issue even though he had not raised it in the court below: “When a trial court
rules on an objection to evidence, it decides only whether that particular evidence should
be excluded. Potential consequences of error in making this ruling play no part in this
decision. A reviewing court, not the trial court, decides what legal effect an erroneous
ruling has. Here, the trial court was called on to decide whether the evidence was more
prejudicial than probative. It did so. Whether its ruling was erroneous is for the
reviewing court to decide. If the reviewing court finds error, it must also decide the
consequences of that error, including, if the defendant makes the argument, whether the
error was so serious as to violate due process. The consequences of hypothetical error are
not something the trial court ordinarily can or should consider when making the initial
ruling.” (Id. at pp. 436-437.)
While the Partida court ruled the defendant could argue on appeal that the legal
consequence of the court’s error was to violate his due process rights, the court was
careful to limit the scope of its holding, “To the extent, if any, that defendant may be
understood to argue that due process required exclusion of the evidence for a reason
different from his trial objection, that claim is forfeited.” (Partida, supra, 37 Cal.4th at p.
436.)
Here, appellant does not argue the court should have sustained his hearsay
objection, and that the legal consequence of that error was a violation of his confrontation
rights. Instead, he implicitly concedes the hearsay argument and then raises an entirely
different argument; on appeal he asserts the admission of the CLETS printout was
erroneous because it violated his confrontation rights as articulated in Crawford.
the defendant remained free of both prison custody and the commission of an offense
which results in a felony conviction.” (Italics added.)

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Because appellant did not raise that issue in the court below, he cannot raise it on appeal.
(People v. Partida, supra, 37 Cal.4th at p. 436.)
B. Sentencing
Appellant contends the aggravated sentence on his Vehicle Code section 2800.2
conviction must be reversed under principles articulated in Blakely v. Washington (2004)
542 U.S. 296 and its progeny. Our Supreme Court recently rejected this same argument
in People v. Black (2005) 35 Cal.4th 1238. Appellant concedes that Black is controlling
in this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)3
III. DISPOSITION
The judgment is affirmed.
_________________________
Jones, P.J.
We concur:
________________________
Simons, J.
________________________
Bruiniers, J.*
*Judge of the Superior Court of Contra Costa County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
3 We note that this issue is pending before the United States Supreme Court in
People v. Cunningham (Apr. 18, 2005, A103501), cert. granted sub nom. Cunningham v.
California (2006) 126 S.Ct. 1329.

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