Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05F08317, 05F08318.
CANTIL-SAKAUYE, J.
A jury convicted defendant Dale Lionell Mark of grand theft (Pen. Code, § 487, subd. (a)) and second degree burglary (§ 459) of DeVon’s Jewelers (counts one and two), as well as grand theft and second degree burglary of Grebitus & Sons Jewelers (counts three and four). The trial court found true allegations that defendant had served nine prior prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to prison for a total term of 12 years and eight months computed as follows: the upper term of three years on count one; the middle term of two years on count two, stayed pursuant to section 654; a consecutive one-third the middle term of eight months on count three; the middle term of two years on count four, stayed pursuant to section 654; and one year for each of the nine prison term priors.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant claims (1) the trial court prejudicially erred in admitting into evidence a 911 call in violation of Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford); (2) the prosecutor committed prejudicial misconduct in closing argument; and (3) the trial court violated his Sixth Amendment rights in imposing an upper term prison sentence in violation of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). Rejecting defendant’s claims, we shall affirm the judgment.
FACTUAL BACKGROUND
DeVon’s Jewelers Incident
On the morning of August 12, 2005, a man entered the DeVon’s Jewelers located at Arden Fair Mall. He asked a salesperson whether the store had any platinum watches. Tom Carson, the manager of the jewelry store, told the man the store did not have any such watches and the man left the store.
A few minutes later, the man came back into the store. Carson showed him the store’s Rolex watches. First, Carson showed the man a stainless steel watch. Then, he showed the man a solid, rose gold, Rolex watch valued at a little over $19,000. The man tried the gold watch on his wrist and wanted to look in the mirror that was two or three feet away. A salesperson asked Carson a question and as Carson turned his head, the man ran out the door with the watch still on his wrist and without paying for it.
Carson ran after the man and chased him through the mall, through the parking lot and to the adjacent street. He saw the man jump into the back seat of a dark blue sedan. Carson could not see the car’s license plate, but saw it leave in the direction of the freeway.
Approximately three weeks later, Carson was shown a photo lineup. Carson took 60 to 90 seconds to view the lineup and then picked out defendant’s photograph, saying he thought defendant was the man who had stolen the Rolex watch. Carson also identified defendant at trial as the man who had taken the watch. The store’s surveillance video of the incident was played for the jury. We have reviewed the surveillance video, which shows a clear, albeit very brief, view of the man entering the store.
Fingerprints taken from the watch display counters came back negative to defendant. However, the prosecutor argued the surveillance tape from DeVon’s Jewelers showed defendant did not touch the counter.
Grebitus & Sons Jewelers Incident
About 4:00 p.m. on August 25, 2005, a man entered Grebitus & Sons Jewelers located at the downtown plaza in Sacramento. Clifford Krayenbuhl, a salesperson, assisted the man, answering his questions about Rolex watch models and costs. In addition to Krayenbuhl, another employee of Grebitus & Sons, Judith Gaudette, noticed and watched the man as he was in the store. The man seemed fidgety and nervous. Krayenbuhl and Gaudette estimated the man was in the store between 15 to 25 minutes.
Krayenbuhl and Gaudette testified the same man returned to the jewelry store around 10:30 a.m. the next day. Krayenbuhl went to assist him again. Eventually, Krayenbuhl took a steel and gold Rolex watch out of the case to show the man. Then he showed the man a solid white gold model, valued at approximately $20,000. The man tried it on his wrist. Krayenbuhl took out a matching ladies’ watch, valued around $15,000. The man quickly stood up, grabbed the ladies’ watch from Krayenbuhl’s hand and ran out of the store, still wearing the man’s watch on his wrist.
Krayenbuhl leapt over the counter, threw off his coat and ran after the man. The man went downstairs to the street and then west on L Street. When Krayenbuhl was within a quarter block of the man, the man noticed him coming. The man turned and ran north on 5th Street. The man tried to cross the street, but was blocked by traffic. At this point, a car pulled up to the curb by Krayenbuhl and someone asked him what was going on. Krayenbuhl told the couple inside the car that a man had just stolen watches from the jewelry store. Krayenbuhl asked the couple to pursue the man. Krayenbuhl watched the couple drive after the man up the street, blocking the man from crossing the street, but Krayenbuhl lost sight of them at the intersection. Krayenbuhl returned to the store to speak to police and review the store’s surveillance tapes. The surveillance tapes were played for the jury at trial. Our review of the tapes indicates a clear view of the same man entering the jewelry store both dates and running out of the store on the second day, quickly followed by a man who is presumably Krayenbuhl.
The Sacramento Police Department received a 911 call on August 26, 2005, about 10:58 a.m. from someone identifying herself as Margo Pumar. Pumar told the 911 operator she and her husband were just driving in downtown Sacramento when they witnessed a man chasing a Black man away from the shopping mall at 5th and L Streets. The man said the Black man had just stolen a bunch of Rolexes. They followed the Black man and saw him get into a silver Nissan Sentra. They saw him as he got onto the freeway going northbound. They just got off the freeway at Richards Boulevard, but had taken down the license plate number of the Sentra, which Pumar then provided. Pumar said it was possible she could identify the man because they drove up to him and honked so that he turned and looked at them. Pumar did not testify at trial.
It was later determined the license plate number belonged to a Sentra rented to defendant a few days earlier by the Enterprise Rent-A-Car located in San Francisco. The rental agent identified defendant at trial as the man who rented the car.
At trial, Gaudette recognized the man on the surveillance tapes from Grebitus & Sons as the man who came into the store late on August 25 and then again the next morning when he took the watches. She also identified defendant in court as the thief who took the watches on August 26, saying she was very certain of her identification.
Fingerprint lifts from the inside of the store doors came back negative to defendant. The prosecutor argued the surveillance video showed defendant did not place his hand on the door in the position of the print lifted from the door.
DISCUSSION
I.
The Claim of Crawford Error
Prior to trial, the prosecution sought a ruling allowing the admission of the 911 call made by Margo Pumar. Defendant objected to the admission of the transcript of the call on the grounds that it violated his constitutional confrontation rights under Crawford, supra, 541 U.S. 36 [158 L.Ed.2d 177], since Pumar was not available as a witness. Finding Pumar’s statements were not testimonial because they were made to law enforcement under the stress and excitement of reporting the situation to assist in an ongoing emergency, the trial court ruled admission of the 911 call did not violate Crawford pursuant to Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis).
On appeal, defendant again claims the statements were testimonial and, therefore, admission violated his confrontation rights under Crawford. We disagree, but to the extent Pumar’s statements could be viewed as violative of Crawford, we find the admission of the statements to have been harmless beyond a reasonable doubt.
The Sixth Amendment to the United States Constitution dictates that in all “criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.; Pointer v. Texas (1965) 380 U.S. 400, 406 [13 L.Ed.2d 923, 928] [applying the Sixth Amendment to the States], superseded by statute as stated in United States v. Silverman (6th Cir. 1991) 945 F.2d 1337.) The United States Supreme Court held in Crawford that this clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at pp. 53-54 [158 L.Ed.2d 194].)
In Davis, supra, 547 U.S. 813 [165 L.Ed.2d 224], the United States Supreme Court clarified what constitutes “testimonial hearsay” that violates the right of confrontation within the meaning of Crawford in the context of a case involving a 911 call. In Davis, the victim/witness McCottry called 911 during a domestic dispute, telling the operator “He’s here jumpin’ on me again.” (Davis, supra, at p. 817 [165 L.Ed.2d at p. 234].) In responding to the operator’s questions, McCottry said the attacker’s name was Davis and he was hitting her with his fists. As the conversation continued, McCottry said Davis had run out the door. The operator told McCottry to stop talking and answer some questions. In response to the operator’s questions, McCottry gave Davis’s date of birth and said Davis had come to get his belongings because she was moving. (Id. at pp. 817-818 [165 L.Ed.2d at pp. 234-235.) McCottry did not testify at trial. The 911 tape was played for the jury, and Davis was convicted of violating a no-contact order. (Id. at p. 818 [165 L.Ed.2d at p. 235.)
The Supreme Court found McCottry’s statements identifying Davis as her assailant were not testimonial. The court reasoned: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 547 U.S. at p. 822 [165 L.Ed.2d at p. 237], fn. omitted.)
In concluding McCottry’s identification statements were not testimonial, the court particularly focused on the fact that McCottry was speaking about events as they actually happened; she was facing an ongoing emergency; the questions asked and answered were necessary to resolve the emergency rather than simply to learn what had happened in the past; and finally, McCottry’s frantic answers were provided over the phone in an environment that was not tranquil or even safe, rather than in a formal interrogation setting. (Davis, supra, 547 U.S. at pp. 826-827 [165 L.Ed.2d at p. 240].)
However, the court also noted it was not asked to consider whether the statements following McCottry’s identification of Davis were testimonial. The court observed that a conversation that begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements. As the court noted: “In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, from that point on, McCottry’s statements were testimonial, not unlike the ‘structured police questioning’ that occurred in Crawford . . . .” (Davis, supra, 547 U.S. at pp. 828-829 [165 L.Ed.2d at p. 241].) The court proposed such testimonial statements could be redacted and in any event, noted defendant did not challenge the Washington Supreme Court’s finding that any error in admission of the testimonial statements was harmless beyond a reasonable doubt. (Ibid.)
In a companion case to Davis, Hammon v. Indiana, the Supreme Court considered statements the victim made in a written affidavit to police officers who were investigating a domestic disturbance that had already run its course by the time the officers arrived on the scene. (Davis, supra, 547 U.S. 813 [165 L.Ed.2d at pp. 241-243].) Finding the statements comparable to those at issue in Crawford, the court determined they were testimonial because they were generated during an investigation aimed at finding out “‘what happened,’” as opposed to “‘what is happening.’” (547 U.S. at p. 829 [165 L.Ed.2d at p. 242.)
The California Supreme Court has derived several basic principles from the United State’s Supreme Court’s discussion in Davis. “First, . . ., the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony--to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (People v. Cage (2007) 40 Cal.4th 965, 984 (Cage), fns. omitted.)
Under these principles, the California Supreme Court in Cage concluded the victim’s response to an officer’s questioning while the victim was in the hospital waiting room was testimonial. By that time, the incident that had caused the victim’s injury was over for more than an hour, the alleged assailant and victim were geographically separated, the victim was in no danger of further violence as to which contemporaneous police intervention might be required, and there was no evidence the primary purpose of the conversation was facilitate the emergency treatment of the victim. (Cage, supra, 40 Cal.4that p. 985.) In contrast, the victim’s statements to a treating surgeon at the hospital were not testimonial as the primary purpose was not to establish or prove past facts for possible criminal use, but to help the physician deal with the immediate medical situation. (Id. at pp. 972, 986.) The court determined admission of the victim’s statements to the officer was harmless beyond a reasonable doubt. (Id. at p. 991 [Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]standard applicable to review of Crawford error].)
Applying these principles to this case requires a careful consideration of Pumar’s 911 call, the pertinent part of which follows:
“OPERATOR: Sacramento Police Department. Carol speaking. May I help you?
“M. PUMAR: Hi. Um, my husband and I were just driving in downtown and we witnessed this, uh, man chasing, um, a Black man away from, I think it was like, uh, one -- the shopping mall that’s on, um, 5th and L, I think. Somewhere around there. Wherever that shopping center is. And, um, obviously it looked like it was pretty, um, hot pursuit. So we kind of, um, asked the guy,
“OPERATOR: Like
“M. PUMAR: -- who’s following him, and he said that he was, um, -- he said the -- the Black man had just, um, stolen a bunch of Rolexes. And so we followed the, um, -- the young, Black man. He’s probably in his twenties, um, until he got in a car. And then we saw him as he just got on, um, Northbound 5 at J Street. He was just, um, at, uh, -- uh, we were just -- we just got off at Richard’s Boulevard, but we got his license plate number.
“OPERATOR: Go ahead with that.
“M. PUMAR: It’s, uh, -- it’s 5KMZ522. It’s a Nissan Sentra, silver.
“OPERATOR: Can you I.D. him?
“M. PUMAR: Um, it’s possible. I mean, he’s -- he -- we -- I -- I -- I saw him running away so I went -- I -- I drove up to him and honked my horn really loudly so that he turned around and he looked at us. And then we kept on honking the horn. I mean, I pretty much laid on my horn because I -- I -- obviously he looked like he’d done something wrong, so I didn’t want him to get away. Um, so we saw his face briefly as he turned around. Um, he was wearing all-black, probably like 5’8”, 5’10”.”
The operator then got Pumar’s name and phone number and told her she would get “this information to the officers that are on the call.”
We conclude Pumar’s statements, when viewed objectively, were not for the primary purpose of establishing or proving past facts for possible use in a criminal trial, but were primarily given, by way of a 911 call, to assist law enforcement in dealing with a contemporaneous emergency, the continuing escape of defendant from the scene of his theft. (Cage, supra, 40 Cal.4th at p. 984.) Although Pumar was not the victim of defendant’s crimes, or a percipient witness to the actual theft, circumstantial evidence indicates she was a percipient witness to Krayenbuhl’s chase of the thief. She and her husband took up the chase where Krayenbuhl left off, following defendant as he got in a car and then following the car as it traveled north on the freeway. She called 911 to relay her observations to the police to assist them in responding to the location of the thief thereby preventing his further escape. Although some of Pumar’s statements related past events - she and her husband saw the chase, they stopped and asked what was happening, they were told of the theft, they followed the man as he got into a car that proceeded onto the freeway - such details were given as context explaining the reason for the call, which related to an ongoing emergency since defendant had not yet been apprehended. Pumar’s identification of the model, color and license plate number of the car was necessary for the police to respond to the area to look for defendant. As Pumar’s statements were made to enable police to meet an ongoing emergency, specifically defendant’s flight from the scene of a crime, they were not testimonial. The admission of such statements at trial did not violate defendant’s confrontation rights under Crawford.
However, even if we were to conclude Pumar’s statements were testimonial, we would find the trial court’s admission of such statements in violation of Crawford harmless beyond a reasonable doubt. As to the DeVon’s Jewelers incident, Carson positively identified defendant in a photo lineup and at trial as the man who had taken the Rolex watch from the store. The store’s surveillance video of the incident was played for the jury. It showed a clear facial view of the man who entered the store, which the jury could determine to be defendant. As to the Grebitus & Sons incident, Krayenbuhl testified the man who came in the store the afternoon before the theft was the same man who came in the next day and stole the Rolex watches. Moreover, Gaudette testified she noticed and observed defendant in the store the afternoon before the theft, she recognized defendant the next day when he returned to the store, she identified defendant on the surveillance tapes and identified him at trial. She was “very certain” of her identification of defendant. Again, the surveillance tapes were played for the jury. The tapes show clear facial views of the man entering the store, which the jury could determine to be defendant. In light of this strong evidence, any Crawford error was harmless beyond a reasonable doubt.
Pumar’s statements are ambiguous as to whether the call was made while Pumar and her husband were still following defendant as they all got off the freeway at Richards Boulevard or whether only Pumar and her husband got off the freeway at Richards Boulevard and then Pumar subsequently made the call. If the evidence clearly indicated the latter, it could be reasoned the immediate emergency was over if defendant had already completed his escape. Arguably, then the primary purpose of Pumar’s statements in the 911 call would have been to report past observed facts for possible use in a criminal trial.
II.
There Was No Prosecutorial Misconduct
Defendant claims the prosecutor committed prejudicial misconduct by impermissibly disparaging defense counsel and stating defense counsel did not believe her client’s defense in two portions of the prosecution’s closing arguments.
First, the prosecutor made the following comments:
“[PROSECUTOR:] The first thing I want to address with you, everybody, is this race issue. And you’re gonna hear it. And it frustrates me because every time you have a [W]hite person identifying a [B]lack person the defense has got to argue race, race, race.
“[DEFENSE COUNSEL]: Objection. Objection, Your Honor. That’s inappropriate.
“THE COURT: Okay. Overruled. Go ahead.
“[PROSECUTOR]: You hear it in the media all the time. That tends to tell you all that [W]hite people can’t tell [B]lack people apart and vice versa. That’s not true. All right? There may be some people in the community that think that, but that’s not true. [¶] So rely on the other factors in this case that you’ve heard about, okay? Don’t just base this on race because that’s not what it is.”
Second, in the prosecutor’s closing rebuttal argument, defendant points to the following comments:
“[PROSECUTOR]: Look folks, I like her. I like [defense counsel].
“[DEFENSE COUNSEL]: Objection, Your Honor.
“[PROSECUTOR]: I know you like her, too, folks.
“[DEFENSE COUNSEL]: Objection. Relevance.
“THE COURT: It’s argument. Go ahead, [prosecutor].
“[PROSECUTOR]: She’s easy to like. All right? She is. I’m not saying that to put on an act. She is. A lot of likable well-spoken attorneys have guilty clients, okay? The job of the defense attorney -- and I’m sure she would agree with me -- is to protect constitutional rights. That’s what we’re dealing with here. Constitutional rights.
“Every case that’s ever filed against a Defendant in any state in this country is based upon constitutional rights. She has a job to do, it is to protect the man sitting to her left no matter what the circumstances, no matter how bad the evidence is. I should say how strong the evidence is against her client.
“She’s got to make something up no matter what the circumstances are out of what she has. She has to come up with the defense. And what do you think it was in this case? I would never come up here and tell you folks that racism doesn’t exist in this country or this city. I would never say that.
“But what I’m trying to make clear to you all is that it so easily becomes the default defense if there was nothing else to hang your hat on in getting to a conviction in this case but that he’s a [B]lack man, and they identified a [B]lack man, and there was some other showing of impropriety or race, then use race as your defense or as an issue to hang home.”
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) The prosecutor’s good or bad faith is not at issue because the standard by which his or her conduct is evaluated is objective. (People v. Hill (1998) 17 Cal.4th 800, 822-823; People v. Alvarez (1996) 14 Cal.4th 155, 213.)
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” (People v. Samayoa, supra, 15 Cal.4th at p. 841 .) “[O]therwise, the point is reviewable only if any admonition would not have cured the harm caused by the misconduct. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 447, superseded by statute as stated in People v. Hinks (1997) 58 Cal.App.4th 1157.)
Defendant claims the quoted comments of the prosecutor were prejudicial misconduct because “defense counsel’s argument that the prosecution’s witnesses were unable or unwilling to distinguish individuals among members of another race was supported by facts and inferences from the record. It was misconduct for the prosecutor to argue to the jury that defense counsel did not fully accept and believe her client’s case. The prosecutor disparaged defense counsel in front of the jury, falsely claimed she had injected the issue of race, and implied it was common knowledge that defense attorneys always present that defense. He also offered his personal opinion and belief that [defendant] was guilty.”
A prosecutor commits misconduct by accusing defense counsel of fabricating a defense, suggesting defense counsel is free to deceive a jury, or otherwise attacking the integrity of defense counsel. (People v. Bemore (2000) 22 Cal.4th 809, 846; People v. Hill, supra, 17 Cal.4th 800, 832.) It is misconduct for a prosecutor to argue that defense counsel does not believe in his or her client’s defense (People v. Thompson (1988) 45 Cal.3d 86, 112) or that the prosecutor personally believes defendant is guilty. (People v. Bain (1971) 5 Cal.3d 839, 848.) However, a prosecutor “has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account.” (People v. Bemore, supra, at p. 846; see People v. Medina (1995) 11 Cal.4th 694, 759.) “An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper. [Citation.]” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) The prosecution may “vigorously attack the defense case and argument if that attack is based on the evidence.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
Defendant objected to only two of the comments by the prosecutor quoted above: (1) to the comment that race was always argued as a defense anytime a white person identifies a Black person, and (2) to the comment that the prosecutor liked, and thought the jury liked, defense counsel. Defendant did not object to the prosecutor’s later comments regarding the nature of defense counsel’s job. The prosecutor made no comments expressing personal belief in defendant’s guilt.
The prosecutor first commented that race was always being asserted as a defense anytime a White person identifies a Black person. This comment, particularly when considered in the context of the prosecutor’s later comments directing the jury to base its decision on factors in the case other than just race, was essentially an argument urging the jury to consider the evidence at trial. The prosecutor cautioned the jury not to be persuaded by defendant’s anticipated argument based on race. It was not prosecutorial misconduct.
The prosecutor’s comment that he liked and thought the jury liked defense counsel did not denigrate defense counsel, quite the contrary. The prosecutor was simply making the point that the personalities of counsel were not at issue and the fact that counsel was likeable had no relevance to defendant’s guilt or innocence. The comment was not prosecutorial misconduct.
Where the prosecutor strayed onto potentially dangerous ground was in his argument that defense counsel was required to “make something up no matter what the circumstances are” and by his following comments implying that defense counsel would assert race as a defense regardless of its support in the evidence. However, defense counsel did not object to that portion of the argument. We conclude an objection and an admonition would have adequately cured any harm. Therefore, any misconduct in these comments is not open to review. (People v. Price, supra, 1 Cal.4th at p. 447.)
III.
The Trial Court Did Not Violate Defendant’s Constitutional Jury Trial Rights In Sentencing
Defendant claims the trial court violated his federal constitutional rights to jury trial and due process when it sentenced him to the upper term of three years for count one, the grand theft from DeVon’s Jewelers, in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We disagree.
Over defendant’s objection pursuant to Blakely v. Washington, supra, 542 U.S. 296 [159 L.Ed.2d 403], the trial court imposed the upper term for count one based on findings that the crimes involved planning, sophistication and professionalism, that defendant’s prior convictions (separate and apart from the prior convictions used as the basis for the enhancement allegations) are numerous, that defendant was on parole at the time these crimes were committed, and that defendant’s prior performance on parole had been unsatisfactory.
Applying Cunningham, our Supreme Court recently held in People v. Black (2007) 41 Cal.4th 799, 816 (Black II) that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.”
Here, the record discloses at least one legally sufficient aggravating circumstance that is justified based upon defendant’s record of prior convictions. The trial judge found the aggravating circumstance that defendant’s “prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous.” The trial court then specifically identified five prior convictions separate from those alleged in the information on which it was relying. (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions deemed numerous]; see also Black II, supra, 41 Cal.4th at p. 818 [citing Searle with approval on this point and concluding five prior convictions were numerous]; Cal. Rules of Court, rule 4.421(b)(2) [defining an aggravating circumstance as including the circumstance of numerous prior convictions].) Consequently, under Black II, the trial judge’s imposition of the upper term did not violate defendant’s constitutional right to jury trial (and related due process rights) under Apprendi/Blakely/Cunningham.
Although defendant disagrees with the reasoning of Black II, we are bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
I concur: BLEASE, Acting P.J.
I concur in the result: DAVIS, J.