Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F02603
OPINION ON REHEARING
BUTZ, J.
A jury convicted defendant Marquiest Leon Murphy of two counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a)--counts one and two). The jury also found true an enhancement allegation as to each count that he personally and intentionally discharged a firearm and proximately caused great bodily injury to a person other than an accomplice (id., § 12022.53, subd. (d)). In 2004, the trial court sentenced defendant to state prison for two consecutive terms of 25 years to life and a determinate term of 11 years four months. The determinate term was based on an upper term of nine years on count one because of numerous prior convictions and two years four months (one-third the midterm) on count two.
On appeal, defendant raised a variety of contentions, including his claim that his upper term sentence on count one was a constitutional violation based on Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). He conceded that this court was bound to follow People v. Black (2005) 35 Cal.4th 1238 (Black I) (vacated sub nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36]). Constrained by the holding in Black I, we affirmed the judgment in an unpublished opinion filed on August 29, 2006.
Defendant filed a petition for review in the California Supreme Court, which the court denied on November 29, 2006, “without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines Cunningham v. California, No. 05-651 . . . .” On December 4, 2006, we issued a remittitur.
On February 28, 2007, defendant filed a motion to recall the remittitur in light of the United States Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). On March 9, 2007, this court recalled the remittitur, vacated the decision, and reinstated the appeal. The parties have filed supplemental briefing addressing the Cunningham issues.
Once again, we reject defendant’s contentions and affirm the judgment.
FACTUAL BACKGROUND
Angered by the presence of rival gang members at a party, defendant randomly shot two of the partygoers during the early morning hours of February 29, 2004--Dianne Butler and Brandon Stevens.
On Saturday night, February 28, 2004, Dianne Butler and three other women were club hopping until shortly before the 2:00 a.m. bar closing time on February 29. They learned an “after party” was being held by Ernest Rudolph at a commercial industrial building used for offices on Power Inn Road. They decided to attend.
Butler had been to parties at the site twice on earlier occasions. She parked in the lot in back of the building and entered through the wide-open back door. When she arrived the back parking lot was filling up. There were a lot more people than at the earlier parties, three times as many. She knew Rudolph for more than nine years and knew that he was affiliated with the Bloods street gang.
The back parking lot became packed with as many as 100 cars. Cars were parked “all over,” not many were in the marked stalls. People were standing around talking and playing music from their cars, loudly.
A large contingent in the back parking lot was affiliated with the Crips street gang. Dennis Blackwell, a Crip for 13 years, arrived in the car of Brandon Stevens, his “home boy,” i.e., a longtime acquaintance or gang associate. They were the fourth car in a caravan of approximately 30 cars, carrying almost 50 Crips, who had learned of the party. The Crips were standing around in front of the back door talking with each other and women who had come to the party. The Crips were not going inside of the building, where the party was underway. They were aware the party was “a Blood function.”
Crips in the back parking lot had been conversing and calling out to each other in their gang’s banter. This is offensive if done in the presence of a person known to be a Bloods affiliate.
Mark Caesar had learned of the after party from a group of Crips at a nearby gas station. He is presently affiliated with a Bloods subset, but gets along with both Crips and Bloods. Generally speaking Crips and Bloods are rival gangs. Sometimes, depending upon the setting and circumstances, meetings of their affiliates result in altercations.
Caesar stopped at a liquor store and then parked on the street near the warehouse. He made his way toward the back door, stopping to talk with people he knew. As he stood near the door he saw Butler come out to smoke a cigarette. As she smoked, she stood right in front of the back door.
As Butler stood smoking her cigarette, facing the door, defendant walked past her. He appeared to be upset, really upset, angry. He seemed to be talking to himself. He was walking “a little hard” and his expression reminded her of her son when he was upset, “kind of a strange stare.” After she saw his face she turned back toward the street, “and started, you know, minding my own business.” The next thing she recalls is waking up in the hospital on March 18th, 2004--nearly a month later. She had been shot in the chest under her right breast. The bullet exited her back below the shoulder blade. She has no memory of hearing gunshots. While in the hospital she identified defendant in a photographic lineup as the “angry man” who walked by her.
Blackwell also saw defendant walking toward the back door. Blackwell recognized defendant as a Bloods affiliate with whom Blackwell had had “gang-related problems” before. Defendant was fiddling with his waistband, looking around. Blackwell called out a warning to his home boys that defendant had a gun.
Within a few seconds after defendant entered the back doorway Blackwell heard gunfire. He saw muzzle flashes inside the doorway. He heard more than seven shots. They were in quick succession with no interval between the shots. Afterward people were screaming and calling for someone to telephone 911.
Stevens testified at trial that he was talking to Blackwell and saw someone walk by real quick muttering. Then he heard a brief argument inside the doorway, gunshots ensued and he ran. As he ran past his car he was shot in the leg. The bullet entered below his buttock and came out mid-thigh in the front. He ran on to the adjacent street and collapsed.
Caesar thought there were “about three shots.” The shots were coming from within the threshold of the doorway. As soon as Caesar heard the shots he ducked down to get out of the way of the door. When he was about to get up he saw Butler on the ground. He went to her, found she was wounded, and telephoned 911 to summon assistance.
About 20 or 30 seconds after the fusillade a lot of people stampeded out of the doorway and were “hopping in their cars getting up out of there.” About 20 or 25 seconds after that Caesar heard a couple of additional shots from an unknown location that he inferred was to the west down the street on Ramona Avenue.
Alerted by 911 calls, Sacramento City Police Department Officers Brian Kinney and Brian Bell arrived at the chaotic scene shortly after 3:00 a.m. Officer Kinney located Butler. She told him she heard the shots and got hit in the chest. Once she had been loaded into the ambulance the officers secured the scene. Blackwell came forward and opined to Officer Bell that defendant was the shooter.
The door opens to an entry space seven feet wide and four and one-half feet deep. A three-and-one-half-foot-wide hallway then continues into the building from the right side of the entry space. Officer Bell found two .40-caliber shell casings inside the building. One was located in the entry space and the other in the hallway. He saw two apparent bullet impact points inside the building. One was on a hallway doorframe; the other was on the wall adjacent to the back door. Bell also found an expended lead bullet and a damaged bullet fragment in the back parking lot, 20 to 25 feet from the doorway.
On March 15, 2004, Stevens was interviewed by Detective Arnel Aquino of the Sacramento Police Department. Stevens was in custody. He had been arrested for possession of a pistol by a convicted felon. He had acquired the pistol because “the word was on the streets” that the man who shot him was looking to “get him,” because Stevens had seen him. The man knew Stevens was light-skinned and drove a white car.
At the beginning of the interview Detective Aquino warned Stevens that Aquino would be giving a full report to his parole officer and that the matter was quite serious as Butler might die. Aquino told him that if he impeded the investigation it would be held against him in the punishment for the firearm possession offense. Aquino suggested that Stevens might even be liable for Butler’s death: “Some witnesses say you had a gun on you and you pulled it out.” Aquino suggested that the man who shot him might say he was firing at Stevens in self-defense. Stevens said that if he had had a gun he would have fired back as his assailant was “in the doorway.”
He then told Detective Aquino that he was smoking a cigarette right outside of the doorway and the man walked right past him through the door. The man was “pissed off” and “saying something in a mad way.” He had a gun in his hand, “down to his side.” The man had “an argument” or “had words with somebody on the inside of the doorway.”
Stevens first said he heard a gunshot, ran, and was shot trying to flee between two cars. Asked directly by Detective Aquino if he saw the man shoot he replied:
“[STEVENS]: I don’t think I actually seen him--actually seen him shoot. I mean, you know, ninety
“[DET. AQUINO]: Had you drink
“[STEVENS]: I’m pretty sure (unintelligible)
“[DET. AQUINO]: Had you been drinking and smoking?”
At the end of the interview Detective Aquino showed Stevens a five-picture photographic lineup. Stevens narrowed the choice down to “one of these two.” He equivocated and then, because Stevens seemed to focus on defendant’s picture, Aquino said: “Okay. So the guy in the middle’s closer?” Stevens replied: “Um, he looks pretty--he--he looks like--he looks closest to the one.” Aquino had Stevens circle defendant’s photograph, and sign and date the photo array.
The next day Detective Aquino interviewed Stevens again. Stevens, equivocally at first, conceded that he “might have looked in” the doorway, when the argument got “real loud.” Stevens said the man was standing next to the hallway wall on a diagonal from Stevens perhaps four or five feet from the door, about 10 feet from Stevens. Stevens drew a diagram for Aquino showing the floor plan, the positions of the other bystanders, and the distance between him and the man who walked past him. “[R]ight then he had just pulled the chrome out. . . . [¶] . . . [¶] I seen the gun, then somebody ran out, shot, and I broke.” He did not see the direction of the shot. He did not actually see the first shot. He saw the man start to raise the gun, “and you know, you don’t sit there and just . . . stare at a person with a gun when he raises it up and he’s about to shoot . . . .” In Stevens’s opinion, there was no one else who could have shot him. He heard “maybe five shots at the most.”
At trial Stevens repudiated the account of the shooting he gave to Detective Aquino. He testified he never looked in the door of the building and never saw defendant raise the gun. He lied to the detective to obtain leniency on the pistol possession charge. Asked about the details he had supplied, he allowed: “I am pretty good at lying when I think it can help me.”
Stevens was incarcerated in the state prison at the time of trial. However, he told the jury he was not really concerned about being labeled a snitch. He asserted that “[e]ver since 25-to-life came into effect,” snitching had become commonplace so there was little sanction for it in the prison system. As far as irking the Bloods, he was not concerned because Crips greatly outnumber Bloods in prison. As to the disapproval of snitching by the Crips, they were not able to hear what he said in court, “so, it doesn’t matter.”
Bruce Moran, a criminalist, collected and analyzed the evidence found by Officer Bell at the scene. He prepared a diagram of the scene displaying his findings. The bullet and fragment found in the parking lot were .38-caliber special or .357-magnum slugs. The bullet was hydroshock style, the fragment, lead wadcutter style. The bullet was deformed and contained tissue debris and blood. Both the bullet and the fragment could have been fired from the same gun, either a .38-caliber special or .357 magnum.
Moran determined a trajectory from the bullet hole in the door jam. It runs diagonally across the hallway, commencing at a point about 15 feet from the doorway into the building. He recovered a .40-caliber slug from the doorframe. No slug was found in the concrete wall at the bullet impact point next to the doorway into the building. The two .40-caliber shell casings found by Officer Bell had been fired from the same gun. The recovered slug was consistent with the recovered shell cases. The bullet impact point next to the doorway into the building was consistent with a bullet fired from a point on the trajectory of the other .40-caliber Smith & Wesson bullet fired into the hallway doorframe.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends that there is insufficient evidence to support his conviction of the offenses and the enhancement findings. He argues that the case against him critically relies on Stevens’s extrajudicial statement to Detective Aquino and that statement is insubstantial and contradicted by other solid and believable evidence. He argues that there is no basis to infer that he fired the shots that wounded Stevens and Butler. He argues that evidence that Stevens was just grazed does not support a finding of great bodily injury. The arguments are unpersuasive and his contention of error is not meritorious.
A. Stevens’s Statements to Detective Aquino
“In reviewing the sufficiency of the evidence, we must draw all inferences in support of the verdict that can reasonably be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” (People v. Miranda (1987) 44 Cal.3d 57, 86.) Viewed in the light most favorable to the prosecution and with all reasonably deducible inferences drawn in support of the verdict, the evidence, in essence, showed the following scenario.
Defendant, a Bloods gangster armed with a .38 special or .357 magnum, crossing the parking lot to attend a Bloods’ social gathering, was required to run the gauntlet of uninvited rivals, Crips gang members and affiliates. He was visibly angered by this situation. As soon as he entered the portal of the building where his affiliates predominated, while in the small entry space, he engaged in a heated argument with one or more of the encroachers. The argument inflamed him further and he brought his pistol to bear firing several shots through the doorway at people in the parking lot. Another Bloods affiliate, farther back in the hallway of the building, fired two shots from a .40-caliber firearm at the interior of the building, to reinforce the “back off” message.
Defendant submits that this view cannot be sustained because it relies on Stevens’s statement to Detective Aquino and that statement is “inherently insubstantial and improbable.” He argues that the statement was the product of Aquino’s threats to prosecute Stevens and misinformation about the physical evidence.
Stevens may or may not have been impelled to give the statement by Detective Aquino’s tactic of suggesting that Stevens could be subject to liability if Butler died. However, that has no manifest bearing on the truth or falsity of the statement. Nor is the fact that both men were unaware that the .40-caliber weapon was not the one used to shoot Stevens of any significance to the truth or falsity of the gist of Stevens’s statement to Aquino.
It is evident that Stevens was lying. He was either untruthful in his statement to Detective Aquino or in his repudiation testimony. However, repudiation does not render a prior inconsistent statement inherently insubstantial. (People v. Cuevas (1995) 12 Cal.4th 252, 276-277; see also, e.g., People v. Ochoa (2001) 26 Cal.4th 398, 445 [no cautionary instruction is appropriate regarding a prior inconsistent statement of a nonparty witness].)
We reject defendant’s claim that his identification by Stevens in the photographic lineup was “more than tainted” as it was a product of coercion by Detective Aquino. Aquino did “instruct” Stevens to circle defendant’s photograph, but only after Stevens had selected it as the one closest to resembling the shooter.
Defendant argues that other evidence “reveals the improbability of [Stevens’s] statements.” He notes that Butler was shot from the front in the chest, that her last recollection was facing away from the doorway, and she was found some 15 feet from the doorway close to the wall of the building. He suggests that this and Caesar’s testimony of shots fired after the initial fusillade show that it is improbable he shot her.
Butler’s loss of memory at the point she was passed by defendant as he walked to the doorway means that there is no evidence she was still facing away from the door when she was shot. There is also no evidence that she must have fallen at the exact spot she was shot. There is nothing in the evidence about her wounding that contradicts the inference she was shot by defendant from inside the entry space. Caesar testified that he made the 911 call about Butler before the mass group of people ran out of the building. This was before the subsequent gunshots which occurred 20 or 25 seconds after that exodus.
Defendant notes evidence that the shooting did not occur until several minutes after he had entered the building. This is testimony of Stevens at trial contradicting his statement to Detective Aquino, testimony that the jury was free to disbelieve along with his repudiation.
Nor is it of any moment that neither the ballistic evidence nor Blackwell’s testimony, standing alone, would suffice to “pinpoint” defendant as the shooter. The issue is whether all the evidence viewed in the light most favorable to the prosecution suffices. Defendant’s claim that Stevens’s statement is insubstantial and contradicted by other solid and believable evidence is unpersuasive.
B. Firearm Enhancement
Defendant next claims that the enhancement finding that he personally used the firearm is unsupported. He notes, among other things, the ballistic evidence that there were at least two weapons used and that no bullet was recovered to show what caliber of weapon was used to wound Butler.
The jury could reasonably infer as follows: There were two weapons fired in the fusillade that caused the woundings; only two shots were fired from the .40-caliber weapon from deeper inside the building and neither slug exited the building; and all of the other shots, including those that wounded Stevens and Butler, were fired by the other weapon, from the shooter in the entry space--defendant. For these reasons and for others already given, there is substantial evidence in support of the challenged enhancement finding.
C. Stevens’s Wound
Defendant’s final substantial evidence claim attacks the finding that Stevens’s wound amounted to great bodily injury. Defendant relies solely on a passing remark of Detective Aquino to Stevens: “You’re lucky you got away with just a graze.” Defendant is required to set forth all the material evidence on great bodily injury; if not it is deemed to be waived. (E.g., Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Defendant does not do so and has waived this claim.
None of the claims that there is insufficient evidence to support defendant’s conviction and the enhancement findings has merit.
II. Gang Evidence Was Properly Admitted
Defendant contends that the trial court erred prejudicially in admitting expert testimony about street gangs. He argues that the court abused its discretion in overruling his objection under Evidence Code section 352 that the probative value of the evidence was substantially outweighed by its undue prejudice. The argument is unpersuasive and the contention of error lacks merit.
Defendant argues that his membership in a Bloods gang had little or no reasonable bearing on motive or identity. He notes that one of the wounded was not a Crips affiliate and that there were many other Bloods present. He submits that this is not a case where “gang implications of the crime were clear and strong.” He argues that in view of these considerations probative value of the expert gang testimony was substantially outweighed by undue prejudice.
This case was suffused with evidence of gang activity and membership. At the outset of trial, defense counsel argued that no expert testimony was required because lay witnesses would provide all the necessary evidence of gang membership and gang rivalry leading to violence, and that sanctions for snitching were matters of common knowledge. In light of this, defense counsel objected to the introduction of the expert evidence under Evidence Code section 352. The ensuing colloquy was long and rambling. In the course of it defense counsel agreed that expert testimony about the status of defendant as a validated gang member was not an issue. The trial court gave the parties some ground rules on the kinds of evidence it would and would not allow and what evidence would be subject to a foundational hearing under Evidence Code section 402.
During the trial there was another protracted discussion on the expert’s potential testimony. In the course of this the defense again indicated that it was not objecting to evidence of defendant’s gang “affiliation and validations.” Thereafter the court, relying on a Court of Appeal opinion that has since been supplanted by a state Supreme Court opinion, ruled that the expert would not be permitted to testify about snitching.
It appears the argument that defendant tenders on appeal has been waived. (See Evid. Code, § 353.) Defendant did not pursue as a specific ground of objection in the trial court that his membership in the Bloods was more prejudicial than probative. The evident reason is that his membership was highly probative to explain his motives and behavior. Contrary to defendant’s appellate claim this is a case where gang implications of the crime were both clear and strong.
Defendant did not object to evidence of his affiliation from other witnesses, nor to the other evidence of street gang ties of the witnesses. Assuming for the sake of discussion that admission of such testimony by the prosecution expert was erroneous, it could not have been prejudicial in these circumstances. The contention that the trial court erred prejudicially in admitting expert testimony about street gangs has no merit.
III. No Instructional Error
Defendant contends the trial court erred in failing to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder. He argues that the evidence that he was angry and that the shootings followed an argument could have supported a finding of absence of malice, warranting conviction of voluntary manslaughter. The Attorney General replies that the claim of error was waived as the error, if any, was invited.
The discussion of instruction on lesser offenses between the court and the defense counsel was as follows:
“THE COURT: All right. How about with respect to lesser included offenses on counts one and two, the attempted murder charges? [¶] Do you wish to, the Court to give any lesser included instructions?
“[DEFENSE COUNSEL]: No, Your Honor, I don’t think it is in my client’s best interest to have the jury instructed on any lesser included. [¶] I don’t believe the evidence would support lesser included given our defense that [defendant] is not the perpetrator of these crimes.
“THE COURT: All right. And your position is the same if the Court indicated a preliminary intent to give an instruction on [Penal Code section] 245[, subdivision] (b), that is, assault with a deadly weapon or assault with a firearm?
“[DEFENSE COUNSEL]: My--my request is the same. I don’t believe that the lesser included is consistent with the defense presented on behalf of [defendant].”
“‘The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the [defendant] cannot be heard to complain on appeal.’ [Citation.] For the doctrine to apply, ‘it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.’ [Citation.] However, ‘[t]he existence of some conceivable tactical purpose will not support a finding that defense counsel invited an error in instructions. The record must reflect that counsel had a deliberate tactical purpose.’” (People v. Bunyard (1988) 45 Cal.3d 1189, 1234 (Bunyard).)
When the defense expressly objects and states the defense position is that the crime is either the charged offense or nothing, i.e., that it does not want the instructions because they are inconsistent with the defense that defendant did not commit the crime at all, the record reflects that counsel had the requisite “‘deliberate tactical purpose.’” (Bunyard, supra, 45 Cal.3d at p. 1234; People v. Horning (2004) 34 Cal.4th 871, 905.) That is what occurred here, hence, defendant’s contention of error is waived. The error, if any, was invited.
A fortiori, defendant’s fall-back argument on appeal of ineffective assistance of counsel in refusing the instructions cannot succeed. “Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
IV. Prosecutorial Misconduct
Defendant contends that the prosecutor committed prejudicial misconduct. He argues the prosecutor committed misconduct in arguing facts not in evidence about Stevens’s statement to Detective Aquino, in adducing that statement which “on its face is patently false,” and in making an unwarranted attack on the integrity of defense counsel when questioning Stevens at trial. None of the arguments is persuasive and the contention of error has no merit.
A. Arguing Facts Not in Evidence
Defendant claims that the prosecutor argued facts not in evidence by speculating that, when Stevens said he saw “ninety--” and was “cut off” by Detective Aquino, he was going to say that he saw “90 percent of what occurred.” Defendant argues that this was not a fair or logical inference about how Stevens was going to complete his remark when compared with his preceding statements: “I don’t think I actually seen him--actually seen him shoot. I mean, you know, ninety--”
“We begin by noting that the prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the deductions are illogical because these are matters for the jury to determine.” (People v. Lewis (1990) 50 Cal.3d 262, 283.)
Stevens eventually repeatedly and clearly told Detective Aquino that while he had not seen defendant actually fire the shot he had observed him raising the pistol in preparation and the shot ensued promptly thereafter. This account may fairly be characterized as having seen “90 percent of what occurred.” Accordingly, it was not beyond the pale of argument for the prosecutor to suggest this is what Stevens meant by being “ninety--” and “I’m pretty sure (unintelligible).” (See, e.g., People v. Harrison (2005) 35 Cal.4th 208, 249.)
B. Adducing Evidence “Patently False”
Defendant argues that the prosecutor was guilty of misconduct in the nature of adducing evidence known to be false by playing for the jury the tape-recording of Stevens’s statement to Detective Aquino. Defendant argues that the statement was a product of improper coercion and manipulation rendering it “patently unreliable.”
The argument is long on pejorative adjectives and short on persuasive force. Notably lacking in defendant’s prolix brief is any authority supporting the assumed premise that Detective Aquino’s behavior in conducting the interrogation was improper, i.e., unlawful. Nor is there any showing or discussion of how the tactics used by Aquino were likely to have produced an untrue statement.
In any event, the claim has been waived by the failure to tender it in the trial court. Defendant’s fundamental complaint is the statement was so unreliable that it should not have been admitted into evidence against him. If so, defendant was obliged to make a motion to suppress the statement in the trial court. (See, e.g., In re Seaton (2004) 34 Cal.4th 193, 197-198; Evid. Code, § 353; cf., American Law Inst., A Model Code of Pre-Arraignment Procedure (1975) § 150.1, pp. 54-56.) Even posed in the derivative garb of prosecutorial misconduct, the claim is waived by failure to object on that ground at trial if the sustaining of the objection would have averted the alleged harm. (People v. Green (1980) 27 Cal.3d 1, 27-34.)
Defendant submits that because knowing use of false evidence is a federal due process violation it is immaterial that he failed to object in the trial court. He cites Miller v. Pate (1967) 386 U.S. 1 [17 L.Ed.2d 690] and Mooney v. Holohan (1935) 294 U.S. 103 [79 L.Ed. 791], cases arising on habeas corpus where it was proven or admitted, extrinsic to the record at trial, that the prosecutor had knowingly used false evidence to obtain a conviction. The cases are inapposite. The defense cannot be faulted for failing to make an objection at trial for which there was no basis.
Defendant submits that we have discretion to reach such a claim despite waiver to forestall a possible habeas corpus claim of ineffective assistance of counsel. We decline the invitation. We assume arguendo that we might reach such a question, notwithstanding the lack of objection at trial, if the essential predicate of a knowing use of false evidence were admitted, established or strongly indicated. For reasons already given, defendant fails to make such a case.
C. Attack on Defense Counsel’s Integrity
Defendant argues that the prosecutor was guilty of misconduct in the course of examining Stevens by suggesting that the defense counsel had improperly coached him. Defendant points to an exchange in which the prosecutor asked why Stevens did not communicate to law enforcement officials before trial that his statement to Detective Aquino was false. Stevens responded that he had tried, unsuccessfully, to communicate that information to defendant’s counsel. Pressed on why he did not communicate with the prosecution Stevens responded: “Because law enforcement has a tendency not to care about the truth as long as they can get a conviction.” The prosecutor replied: “That sounds like a pat answer, don’t you think so, Mr.--” At that point defense counsel objected that the remark was argumentative and the court sustained the objection.
Defendant suggests that the prosecutor’s remark was “a transparent attempt to suggest that defense counsel had managed to turn this witness around to tell a more favorable version of events at trial.” We cannot discern how this implication can be assigned to the prosecutor’s remark. Stevens had just testified that he had been unable to communicate with defense counsel, a point that was reiterated during Stevens’s cross-examination.
In summary, all of defendant’s arguments on this point are unpersuasive and his contention of prosecutorial misconduct has no merit.
V. Blakely Error
We ordered recall of the remittitur to consider defendant’s contention that our opinion was erroneous because the trial court erred under Cunningham in imposing an upper base term on the first attempted murder conviction because of aggravating factors that were not admitted nor submitted to the jury. Defendant argues that the trial court erred in imposing the upper term based on numerous prior convictions because: (1) some of the convictions were juvenile adjudications and (2) “numerous” is a fact requiring jury determination. The Attorney General replies that the trial court did not err.
The trial court gave the following explanation of its choice of the upper term sentence: “And I am selecting the upper term based on your numerous prior convictions both as a juvenile and as an adult. They are summarized in the probation report. [¶] And, additionally, because the crime that you--or the conduct you--engaged in historically indicates that you are a danger to society, and, in fact, you have had three felony petitions sustained as a juvenile [and] four misdemeanor petitions sustained[, and,] as an adult, one prior felony and seven prior misdemeanors, and you’ve been to State prison, I think all those factors justify the upper term.”
In People v. Black (2007) 41 Cal.4th 799 (Black II), the Supreme Court held: “[I]mposition 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.” (Id. at p. 816.) It also held that a finding that a defendant’s prior convictions are numerous or of increasing seriousness is such a legally sufficient aggravating circumstance appropriately determined by the sentencing court. (Id. at p. 819.)
The only additional argument made by defendant in this case is that under Cunningham the trial court may not include juvenile adjudications as prior convictions within this aggravating circumstance. He submits this is so because juvenile adjudications are not subject to a jury trial guarantee, citing United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 and, accord, People v. Nguyen (2007) 146 Cal.App.4th 1332 (review granted Oct. 10, 2007, S15487). We adhere to the reasoning in People v. Palmer (2006) 142 Cal.App.4th 724, 727, rejecting Tighe (and by implication, Nguyen, in which review has been granted). Palmer is supported by the rejection in Black II of the claim that the federal right to jury trial includes the right to a jury determination on prior conviction allegations. (Black II, supra, 41 Cal.4th at p. 819, fn. 8.) Moreover, even without the juvenile adjudications, defendant’s prior convictions are numerous and we see no reason why another aggravating circumstance cited by the trial court, that he had served a prior prison term, would not suffice as a legally sufficient aggravating circumstance in any event.
For all the foregoing reasons we conclude there was no Cunningham error in this case. Accordingly, our judgment on appeal was not erroneous and the order recalling the remittitur should be vacated. (See, e.g., 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 736-737, pp. 765-767.)
DISPOSITION
The order recalling the remittitur is vacated; the remittitur shall reissue on our decision affirming the judgment.
We concur: NICHOLSON, Acting P.J., RAYE, J.