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The People v. Dominique Darnell Baker

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Lassen


March 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DOMINIQUE DARNELL BAKER, DEFENDANT AND APPELLANT.

Super. Ct. No. CH026238

The opinion of the court was delivered by: Hull , Acting P.J.

P. v. Baker CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Dominique Darnell Baker of two counts of battery on a non-confined person. (Pen. Code, § 4501.5; counts one & two; unless otherwise specified, statutory section references that follow are to the Penal Code.) The trial court found true allegations that he had suffered two prior serious or violent felony convictions. (§§ 667, subds. (b)-(i), 1170.12.) Thereafter, one prior conviction allegation was dismissed in the interest of justice. (§ 1385.) Defendant was sentenced to state prison for six years, consisting of twice the middle term of three years on count one; sentence on count two was stayed pursuant to section 654.

On appeal, defendant contends (1) evidence of his statement to an examining nurse was erroneously admitted, (2) evidence that a victim had filed a false incident report was erroneously excluded, (3) his request for a brief continuance was erroneously denied, (4) the cumulative effect of the foregoing errors was prejudicial, and (5) the court's choice of the middle term of imprisonment was not an informed exercise of discretion. We affirm the judgment.

FACTS AND PROCEEDINGS

On October 22, 2007, at approximately 6:50 a.m., High Desert State Prison Correctional Officers Kelly Hassell and Robert Lucas approached defendant's cell and asked for his breakfast tray. Defendant was supposed to pass the tray through a "food port" to the officers in exchange for a sack lunch. However, defendant refused, stating that he wanted to receive two sack lunches because the previous day's lunch had been taken from him. Hassell told defendant that pursuant to policy he would receive only one lunch.

At Officer Hassell's direction, defendant placed the breakfast tray on the food port. As Hassell removed the tray, he saw defendant quickly turning his upper body toward the cell door and felt liquid hitting his right forearm and neck with enough force to suggest that it had been thrown. Similarly, Officer Lucas felt liquid hitting him with enough force to splash up from his torso and left arm to the left side of his face and left eye. The liquid immediately started to burn his eye.

At the time of the incident, defendant was alone in the cell and his food port was the only food port open. Although neither officer saw him throw anything, Officer Hassell leaned to the left because he believed defendant's motion signaled that he would throw something through the port. Officer Lucas knew the substance came from defendant's food port and believed it had been thrown intentionally. From the force with which he had been hit, the distance between him and the port, and defendant having been denied a second lunch, Lucas deduced that it was not possible that something had just splashed up from a nearby trash can.

Officer Hassell closed the food port, and both officers left the area to clean themselves. Before Hassell left, he heard Officer Lucas say that something had struck him. Hassell saw wet marks on Lucas's left side.

Officer Hassell notified Sergeant Striker of the incident. When Officer Lucas finished cleaning himself, Striker approached him and they discussed the incident. At the sergeant's direction, Lucas went to a clinic and had his eye checked for exposure and flushed out. Washing the eye helped to relieve the pain.

Neither officer noticed any unusual smells emanating from the liquid; nor did either notice what was on the floor. Neither officer's jumpsuit was retained for evidence.

Officer Hassell told Correctional Officer Terry Cobb that he and Officer Lucas had been "gassed," which meant an inmate had thrown liquid on them. Cobb noticed that Hassell and Lucas were wet. Upon Sergeant Striker's orders, Cobb escorted defendant from his cell to a holding cell for medical clearance. When Cobb arrived at defendant's cell, he noticed that area in front of the door was wet.

As a result of the incident, High Desert State Prison Nurse Sandra Caldwell had to issue medical clearances for the officers and defendant. She observed that Officer Lucas had a wet left eye and clothing, and Officer Hassell had a wet right arm and neck. She instructed Lucas to get an "exposure package" from the prison hospital and then proceed to a medical center.

Nurse Caldwell asked defendant, who was uninjured, what had happened; he answered, "Nothing." In response, Caldwell stated, "it sounds like you threw something on the officers." Defendant replied, "I just threw water."

DISCUSSION

I Statements to Nurse Caldwell

Defendant contends the trial court erred when it denied his motion to exclude his admission to Nurse Caldwell that he "threw water." He claims the statement was obtained in violation of his Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) rights and its admission was prejudicial. We disagree.

At an Evidence Code section 402 hearing, the parties stipulated that, before he saw Nurse Caldwell, defendant had been advised of his Miranda rights, had invoked his rights, and had chosen to remain silent.

Nurse Caldwell testified that, at 7:30 a.m. on the day of the incident, she met defendant, who was handcuffed, in a holding cell for the purpose of issuing medical clearance. To do so, she had to thoroughly examine and talk to the inmate. Although there was no indication that defendant had been injured, she still examined him because "sometimes [inmates] don't realize they are injured." She first asked defendant "What happened?" Defendant responded, "Nothing," which is a "very common" inmate response. A few minutes later, while examining defendant, Caldwell said, "Sounds like you threw something on the officers." Defendant replied, "I just threw water."

Nurse Caldwell testified that her questioning was not for the purpose of investigating a crime but for the purpose of medical clearance. She always talks to inmates, in order to see if they are "oriented times three," to evaluate "[h]ow they are talking to" her, and to determine whether "they smell of alcohol." Inmates "sometimes" will tell Caldwell things that they "are not normally going to tell an officer." No officer had asked her to question defendant.

In his motion in limine, defendant argued that his statement had been taken "in violation of [his] constitutional right, since he had invoked his right to remain silent before being treated by LVN S. Caldwell, who is an employee of" the California Department of Corrections and Rehabilitation (CDCR). In an accompanying memorandum, defendant argued that his statement was taken in violation of Miranda, citing Edwards v. Arizona (1981) 451 U.S. 477, 484 [68 L.Ed.2d 378, 386].) Defendant orally argued that the statements violated his Sixth Amendment rights because Caldwell was "an extension of law enforcement," in that she was employed by CDCR. Defendant suggested the prosecution was trying to "circumvent" Miranda and thus use his statement in its case-in-chief. Defendant acknowledged that it was irrelevant whether Caldwell's statement was a question. Rather, what was important was whether she had initiated conversation about the facts of the crime. As a result, defendant argued the statement should be excluded on Sixth Amendment grounds.

In response, the prosecutor acknowledged that if Nurse Caldwell's statement was "something that could be meant to elicit a response," then it was a question for Miranda purposes. The prosecutor argued that the purpose of Miranda was to counteract the psychological pressures placed upon a suspect during a criminal investigation and not to exclude routine medical questioning. The prosecutor cited and argued multiple cases supporting his argument that defendant was not in custody for Miranda purposes.

The trial court allowed Nurse Caldwell to testify regarding her statements and defendant's statements.

Miranda applies only when a suspect is subjected to "custodial interrogation." (Oregon v. Mathiason (1977) 429 U.S. 492, 494 [50 L.Ed.2d 714, 719].) It is not necessary to consider whether defendant, handcuffed in a state prison holding cell, was in custody for Miranda purposes when he spoke to Nurse Caldwell. (See People v. Macklem (2007) 149 Cal.App.4th 674, 686-696.) It is sufficient to consider only whether she interrogated him and we hold she did not.

"[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [64 L.Ed.2d 297, 308], italics added, fns. omitted (Innis).)

We note that defendant's brief quotes this sentence from Innis, but ellipses appear in place of the portion that we have italicized.

In this case, defendant was neither questioned nor subjected to equivalent "words or actions," by "the police" or by their analog, CDCR correctional officers. (Innis, supra, 446 U.S. at p. 301 [64 L.Ed.2d at p. 308].) Assuming that Nurse Caldwell functioned on behalf of CDCR, her testimony established that she questions inmates "every time" she is asked to issue medical clearance in order to evaluate whether they are "oriented times three" (i.e., oriented to person, place, and time), to evaluate "[h]ow they are talking to" her, and to determine whether "they smell of alcohol."

Nurse Caldwell's testimony established that medical clearance, and the questions that are prerequisite to its issuance, are "normally attendant to" inmate custody at CDCR. (Innis, supra, 446 U.S. at p. 301 [64 L.Ed.2d at p. 308].) Caldwell's statement, "It sounds like you threw something on the officers," and defendant's response, "I just threw water," established at least implicitly that he was oriented to person, place, and time: he knew he was (1) an inmate (2) in a state prison, who (3) recently had experienced a confrontation with correctional officers; he responded by throwing water. Defendant's argument that a prison nurse would not ask such questions unless she knew she was acting as an interrogator has no merit.

We conclude Caldwell's questions and defendant's answers were within the exception to the Innis definition of "interrogation." (Innis, supra, 446 U.S. at p. 301 [64 L.Ed.2d at p. 308].) Further, because defendant was not compelled to answer the questions Nurse Caldwell put to him, his reliance on authorities excluding evidence of coerced statements is misplaced. (E.g., Estelle v. Smith (1981) 451 U.S. 454, 465 [68 L.Ed.2d 359, 370].) His suppression motion was properly denied.

II Impeachment Evidence Regarding Officer Hassell

Defendant contends the trial court abused its discretion at the Evidence Code section 402 hearing when it excluded evidence that Officer Hassell previously had filed a false report in an unrelated matter. We are not persuaded.

Background

Prior to trial, defendant requested that he be allowed to question Officer Hassell about a false crime/incident report he had prepared in an unrelated matter. A CDCR Office of Internal Affairs (OIA) report regarding the false crime/incident report was made a part of the record. The OIA report reveals the following:

On July 9, 2007, Officer Hassell's supervisor, Sergeant Patton, ordered Hassell to remove inmate Brookins, who had exposed himself, from his cell and to escort him to the kitchen area of the dining hall. Once there, Patton began speaking with Brookins while Hassell stood to the left of Brookins with his right hand on Brookins's left arm. Without warning, Patton grabbed Brookins by the throat and pushed him backwards onto the grill. Using the palm of his left hand, Patton slapped Brookins on his face. After doing so, Patton stood Brookins back up and told Hassell to escort him back to his cell. During this entire encounter, Hassell maintained his grip on Brookins's arm but never struck him. Although Brookins struggled under Patton's grip, he did not speak during the encounter.

Officer Hassell "was very disturbed" by Sergeant Patton's actions, which he considered a battery, but he did not report it that day because he wanted to give Patton a chance to report himself. Hassell was also concerned about reporting the incident because Patton had a higher rank and thus, he believed, more credibility. The next day Patton told Hassell "regarding the incident with Brookins, they were going to say they never had him out of his cell." Hassell told Patton that he was not going to lie and that Patton needed to report what he had done to the lieutenant. Patton responded, "'You could get fired because it's already been a day and you didn't tell on me.'" Hassell denied any wrongdoing on his part and said Patton had placed him in the predicament he was in. Hassell further told Patton that he would report him to the lieutenant if Patton did not do so himself. Patton tried to convince Hassell that no one would be able to prove anything against them and that Hassell should lie to cover up the incident.

While Officer Hassell attended to other duties, Sergeant Patton spoke to Lieutenant Ernie Coe. Patton then asked Hassell to go with him to talk to Coe. When they arrived, Coe asked Hassell what had happened. When Hassell hesitated, Coe stated that Patton had told him they had removed Brookins from his cell to counsel him, and, when Brookins suddenly tried to hit Patton with his head, Patton punched him in the chest area. Hassell felt confused about what to do and was concerned about being labeled a "snitch" and ruining his ability or trust to work the line at the prison. Coe ordered Hassell to write a report.

Hoping to stall events long enough to figure out what to do, Officer Hassell wrote a report that included what he thought Sergeant Patton and Lieutenant Coe wanted. Hassell handed his report to Patton who told him it looked fine and apologized for placing him in that predicament.

On July 12, 2007, after spending an entire day trying to determine what to do, Officer Hassell called the warden's office and asked to speak to him, since he did not feel comfortable speaking to anyone else at the prison about it. Hassell spoke to Associate Warden Stan Armoskus about the incident with Sergeant Patton. Thereafter, Hassell called in sick for several days because of the incident.

Recognizing that Officer Hassell was never charged or convicted of a criminal offense and that he expeditiously confessed his wrongdoing and wrote a corrected report, the trial court determined it was unnecessary, under Evidence Code section 352, to have a "trial within a trial" about the incident. The court further indicated that testimony about the incident would be unduly consumptive of the court's time, especially given that the prosecutor had indicated he would call multiple witnesses, including some who no longer worked at the prison, to bolster Hassell's credibility.

"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

The OIA report suggested, not that Officer Hassell was predisposed to lie, but that he was susceptible to pressure to lie when a superior officer inflicted it upon him. Because nothing in the Evidence Code section 402 hearing suggested that any comparable pressure had been applied to him in this case, the probative value of the OIA report was marginal at best. Defendant's argument that probative value was great, simply because Hassell had lied about an inmate in the recent past and then complained about and testified against defendant, overlooks the undisputed and nonrecurring circumstances that surrounded the prior lie.

Finally, the trial court was properly concerned that the prosecutor would respond to the OIA report by calling several witnesses, some of whom were no longer employed at the prison and therefore no longer in the area, thus resulting in a time-consuming "trial within a trial." Because the evidence's probative value was so slight, the undue consumption of even a relatively modest period of time would substantially outweigh it. Under all of these circumstances, we cannot say that the trial court's exercise of its discretion was arbitrary, capricious, or patently absurd. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) There was no abuse of discretion.

Defendant contends exclusion of the OIA report violated his Sixth Amendment confrontation rights and his Fourteenth Amendment due process rights. Neither claim has merit.

"'"[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" [Citations.] However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [the witnesses'] credibility" [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 494.)

We have already explained that the excluded evidence was of marginal relevance and had the potential to confuse the issues. The impression it would have made of Officer Hassell's credibility was that he could be manipulated by a supervisor who had threatened the loss of his job, not that he would falsely accuse hapless inmates for no evident reason. There was no Sixth Amendment violation. (People v. Hillhouse, supra, 27 Cal.4th at p. 494.)

Defendant has not made a separate argument under the Due Process Clause of the Fourteenth Amendment. In any event, it is settled that application of ordinary rules of evidence does not impermissibly infringe on a defendant's due process right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Mincey (1992) 2 Cal.4th 408, 440; People v. Hall (1986) 41 Cal.3d 826, 834.) There was no due process violation.

III The Request for a Continuance

Defendant contends the trial court abused its discretion when it denied his request for a brief continuance so that he could recover from surprise and prepare to testify on his own behalf. We are not convinced.

After the prosecution rested its case and the trial court denied defendant's motion for dismissal based on insufficient evidence, defendant said through counsel he wanted to testify on his own behalf. The court advised him that he would be subject to cross-examination and that the jury could learn about his prior felony convictions. Defendant waived his right against self-incrimination. His trial counsel then asked that defendant be given an opportunity to use the restroom, get some water, and be escorted to the witness stand before the jury returned to the courtroom. Shortly thereafter, this colloquy occurred:

"[DEFENSE COUNSEL]: We have got some confusion. Do you want to testify or not?

"THE COURT: Counsel, let me suggest this. Take him down back and give him chance [sic] to relieve himself and get some more water. He can talk with you in the holding cell. He can reinstate that, I'm not going to hold him to testify. [¶] Hold on. Hold on for a minute. I want [defendant] and [defense counsel] to go back in the holding cell. [¶] I want him back in the holding cell. I want you to go back and talk with him. Thank you, [defendant]."

After a recess, the prosecutor indicated his desire to cross-examine defendant about his earlier testimony (at a hearing regarding shackling for trial) that he had multiple personality disorder. Defense counsel objected under Evidence Code section 352 and confirmed that defendant still wanted to testify. After arguments by the parties, the court denied the prosecutor's request to cross-examine on the issue. This exchange followed:

"[DEFENSE COUNSEL]: Now [defendant] is saying he doesn't want to testify. I suggest we adjourn until tomorrow morning and address the issue at that time.

"[THE PROSECUTOR]: I don't think there's any reason to adjourn to tomorrow morning. The Court's ruled you [sic] can't use it. So let's move on. We have delayed this trial enough.

"[DEFENSE COUNSEL]: Your Honor, I believe that [the prosecutor] has presented this in a fashion that just added to [defendant's] psychological issues. I haven't had any problem communicating with him. He indicated to me in the past he is ready to testify. Now he is confused and I don't blame him.

"[THE PROSECUTOR]: Well, first of all, we heard this before the break, before I brought up any issue. It was, oh, he wants to testify. If we don't reconvene there's no right for the defendant to have twenty-four hours to decide. He's had since this case has been in the system to know whether he wants to testify or not.

"THE COURT: Why don't I bring the jury back in for the purpose of the defense resting or not resting. If the defense does not rest, then I will proceed here today. If the defense does rest, I'd like it back in the morning for instructions and argument.

"[THE PROSECUTOR]: Makes perfect sense.

"THE COURT: Okay. Let's bring the jury back in.

"[DEFENSE COUNSEL]: Actually, one more thing we need to put on the record. That is, [defendant] understands he has the right to testify and does not want to testify.

"THE COURT: All right. That's on the record. All right bring the jury in."

When the jury returned to the courtroom, the defense requested a recess until the following morning. After that request was denied, defense counsel announced, "reluctantly we rest." The court again told defendant that it was his choice whether to testify. Defendant again waived his right to testify. Defense counsel confirmed that the defense was resting.

"A continuance will be granted for good cause (§ 1050, subd. (e)), and the trial court has broad discretion to grant or deny the request. [Citations.] In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.] One factor to consider is whether a continuance would be useful. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 1012-1013, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Defendant contends the trial court's rejection of his request to continue the trial until the following morning was an abuse of discretion under state law and a violation of his Fifth and Fourteenth Amendment due process rights. The Attorney General responds that defendant never made a motion for a continuance and "merely suggested that the parties adjourn until the following morning to address whether [defendant] wanted to testify."

Assuming for present purposes that the request was a motion for continuance, the record as a whole does not indicate that a continuance would have been useful. (People v. Frye, supra, 18 Cal.4th at pp. 1012-1013.) Defendant's trial counsel suggested that the parties adjourn until the following morning to address whether defendant wanted to testify. Defense counsel represented that the prosecutor's request had "added to" defendant's "psychological issues," and that he was confused as to whether to testify. The prosecutor countered that defendant's confusion had first arisen before the previous break and before the prosecutor expressed his desire to cross-examine about the multiple personality issue.

When the court stated it was going to bring the jury back in, defense counsel put on the record that defendant understood his right to testify and that he did not want to testify. Neither defense counsel, nor defendant personally, expressed any lingering confusion about the issue.

After the jury returned, defendant's counsel noted that the trial had moved more rapidly than expected and added, "[w]e need time to recess, finish tomorrow." Thereafter, in response to questioning from the court, defendant personally stated that he wanted to waive his right to testify. Once again, neither counsel nor defendant personally expressed any lingering confusion about whether to testify.

Thus, defense counsel's assertion that a continuance was necessary due to defendant's confusion regarding whether to testify was promptly, and repeatedly, refuted by the two unequivocal assertions that he did not wish to testify. Nothing in the record suggests that defendant remained confused notwithstanding the latter two statements. On these facts, there is no basis to speculate that a continuance would have been useful. (People v. Frye, supra, 18 Cal.4th at pp. 1012-1013.) There was no abuse of discretion or constitutional violation.

IV Cumulative Error

Defendant contends the cumulative effect of the foregoing errors was prejudicial and requires reversal of his convictions. Because we have rejected each individual claim of error, we also reject the claim of cumulative prejudice.

V The Trial Court's Sentencing Discretion

Defendant contends the trial court failed to exercise informed discretion when it rejected its tentative indication of a low term sentence and instead imposed the middle term. The Attorney General counters that the issue is forfeited by defendant's failure to object to the court's explanation of its choice of the middle term; alternatively, if the court's explanation was insufficient, it is not reasonably probable the court would choose a lesser term upon remand. The Attorney General has the better argument.

At sentencing, defendant argued that the trial court should strike both of his prior convictions and place him on probation concurrent with his period of parole. The prosecutor countered that justice would not be furthered by striking either prior conviction because of the nature of the priors, defendant's mental problems, his lack of remorse, his parole violations, and his recent outbursts while incarcerated. Defense counsel responded to the prosecutor's argument, and defendant personally addressed the court. The court then clarified that the sentence range on each count was two, three, or four years. One prior strike conviction would double those terms; two prior convictions would require a sentence of 25 years to life.

After setting forth the reasons it was considering with respect to striking a prior conviction, the court asked if the matter was submitted. The defense submitted, and the prosecutor asked to be heard. Before hearing the prosecutor's argument, the trial court stated that it intended to strike one prior conviction and sentence defendant to two concurrent low terms, each doubled for the remaining prior conviction. The court indicated that the four-year sentence was "fair" and "sufficient punishment" for defendant's "relatively minor" conduct and invited the prosecutor to respond.

The prosecutor argued that, in order to impose the low term, the court had to find mitigating circumstances; he claimed that none were present. The prosecutor further suggested that striking a prior conviction would not be in furtherance of justice. Defendant submitted.

The trial court struck one of defendant's prior convictions and imposed the middle term of three years. The court stated, "Let me know if I'm using the wrong words. Count I, three years, midterm, I don't want to get into the appellate issues of mitigating and aggravating circumstances. I think an argument could be made in either direction."

Neither counsel accepted the trial court's invitation to correct its choice of words. The court added: "I wish [defendant] good luck. I just can't see on this charge, knowing the facts, I have lived with them for several months, I can't see twenty-five to life for this young man. He realizes the seriousness of his behavior and that he needs his medication."

Defendant claims the trial court's ultimate choice of the middle term, rather than the low term, "was not based upon informed discretion, but upon a misunderstanding of the law." Specifically, the court erroneously "thought that the factors in mitigation and aggravation had to be balanced before deciding which term of the sentencing trial [sic] should be chosen."

The Attorney General counters that defendant "cannot for the first time on appeal challenge the manner in which the sentencing judge exercises discretion in making sentencing choices or articulates his or her supporting reasons." (People v. De Soto (1997) 54 Cal.App.4th 1, 4; see People v. Tillman (2000) 22 Cal.4th 300, 303; People v. Scott (1994) 9 Cal.4th 331, 352-353.) Upon timely objection, the trial court easily could have corrected the problem that defendant raises on appeal. His failure to object forfeits the issue on appeal. (People v. Quintanilla (2009) 170 Cal.App.4th 406, 412-413.)

Defendant disagrees, claiming an objection would have been futile because the trial court "indicate[d]" that it "was not going to 'get into' the issues of what term would constitute the appropriate sentence." We are not convinced.

The trial court stated that it did not want to "get into the appellate issues of mitigating and aggravating circumstances." Although it had just invited both counsel to "[l]et [it] know" if it were "using the wrong words," neither counsel addressed the phrase "appellate issues" or sought clarification whether the court intended to preclude all consideration of aggravation and mitigation, as opposed to a discussion of issues that likely would be raised in this appeal.

We do not read the court's ambiguous remarks as an outright refusal to consider which of the three available terms would be most appropriate. Nor do we believe the court would have persisted in such refusal had counsel voiced a timely objection. For these reasons, the objection would not have been futile.

This court has declined to apply the forfeiture rule where its application would not further the interests of judicial economy upon which it is based. (In re Kacy S. (1998) 68 Cal.App.4th 704, 713.) But defendant's discussion of Kacy S. fails to explain why judicial economy would not be furthered by application of the forfeiture rule in this case.

In any event, the court's comment that "an argument could be made in either direction," i.e., for the upper or lower term, and its ensuing selection of the middle term, implicitly recognized that the case contained both aggravating and mitigating circumstances and further implied that the middle term best served the interests of justice. (§ 1170, subd. (b).) Although the court is not required to weigh the various circumstances against one another (§ 1170, subd. (c); People v. Sandoval (2007) 41 Cal.4th 825, 847), it also is not precluded from selecting the middle term for the stated reason that fair arguments could be made for both the upper and lower terms. That includes the arguments that the prosecutor made in response to the court's indication of a low term sentence. The court did not misunderstand the sentencing law or fail to use informed discretion when imposing sentence.

DISPOSITION

The judgment is affirmed.

We concur: ROBIE ,J. DUARTE ,J.

20110328

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