Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF052727
CANTIL-SAKAUYE, J.
A jury convicted Francisco Vela of attempted robbery (Pen. Code, §§ 211, 664), attempted grand theft (Pen. Code, §§ 487, 664), public intoxication (Pen. Code, § 647, subd. (f)), and sustained two prior prison term allegations. (Pen. Code, § 667.5, subd. (b).) Defendant was sentenced to five years in prison: an upper term of three years for the attempted robbery count, a stayed 18-month term for attempted grand theft, and two one-year terms for the prior prison terms.
On appeal, defendant contends the attempted grand theft conviction should be reversed because it is a lesser included offense of the attempted robbery conviction, the upper term sentence violates Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), and the sentence for attempted grand theft was unauthorized. We shall reverse the attempted grand theft conviction, vacate its sentence, and affirm the judgment in all other respects.
BACKGROUND
On November 5, 2005, Cesario Salas gave his friend Sinforiano Rincon a ride to the corner of Percy Avenue and Woodbridge, which is across the street from Salas’s house in Yuba City. As Rincon walked down Percy Avenue towards his home, defendant grabbed him from behind and took his cap off. Defendant said, “Rincon, give me money or I will beat you.” He stuck his hands in Rincon’s pocket looking for money. Defendant picked up Rincon and carried him a short distance. Defendant told Rincon: “If you give me two dollars, I’ll give you your hat back.” He also threatened to beat Rincon up if he did not give defendant the money. Salas shouted, “‘[d]on’t give him any money. I’m going to call the police’” and defendant tossed the hat to Rincon.
Rincon knew defendant. He had bought beer for defendant before, but did not do so this time because he had no money to give. Defendant wanted to take money from him, and did not have permission to take his hat. Rincon was 65 at the time of the incident and was afraid for his life. He told Salas that defendant threatened to beat him up if he testified against defendant.
Yuba City Police Officer Charles Ernst responded to a report of the incident. After speaking to Rincon, Salas, and the owner of a nearby restaurant, he found defendant sitting on a porch at a residence on Woodbridge. Defendant appeared to be intoxicated, and admitted to drinking “two 40-ounce beers and a couple [of] small ones.”
Defendant testified on his own behalf. He was friends with Rincon and had once saved his life. A Mr. Napol wanted defendant to call Rincon over. Defendant playfully took Rincon’s cap, but gave it back when he saw Rincon was offended. Defendant asked Rincon for money to buy beer, but never grabbed Rincon or picked him up. Defendant denied being drunk.
DISCUSSION
I.
Defendant contends his conviction for attempted grand theft should be reversed because it is a lesser included offense of his conviction for attempted robbery. The Attorney General correctly concedes the point. We accept the concession and reverse the attempted grand theft conviction.
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117.)
Penal Code section 484, subdivision (a), defines the crime of theft: “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, . . . is guilty of theft.” Robbery is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) “‘Theft is a lesser included offense of robbery, which includes the additional element of force or fear.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Both grand and petty theft are lesser included offenses of robbery. (People v. Ortega (1998) 19 Cal.4th 686, 697 (Ortega).)
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Pen. Code, § 21a.) The courts have consistently held “that attempt is a lesser included offense of any completed crime.” (In re Sylvester C. (2006) 137 Cal.App.4th 601, 609.) Therefore, attempted grand theft is a lesser included offense of attempted robbery.
California law generally allows a person to be convicted of multiple crimes stemming from a single act or course of conduct. (Pen. Code, § 954.) “But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]” (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Therefore, a defendant cannot be convicted of both robbery and grand theft stemming from the same conduct. (Ortega, supra, 19 Cal.4th at p. 699.)
The crimes here were committed in a single course of conduct where defendant grabbed defendant from behind, rifled through his pockets, took his hat, and demanded money for beer. “‘When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals.’ [Citation.]” (Ortega, supra, 19 Cal.4th at p. 699.) When the robbery and theft are part of a single course of conduct, the theft conviction must be reversed. (Ibid.)
We reverse defendant’s attempted grand theft conviction and vacate the sentence thereon. Since the trial court suspended defendant’s sentence for attempted grand theft, resentencing is not necessary.
II.
Defendant claims his upper term sentence for attempted robbery is invalid under Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We disagree.
The United States Supreme Court held in Cunningham, supra, 549 U.S. at page ___ [166 L.Ed.2d at p. 873] that under California’s determinate sentencing law, the middle term is the statutory maximum which a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. (Id. at p. ___ [166 L.Ed.2d at pp. 873-874].) Applying Cunningham, in People v. Black (2007) 41 Cal.4th 799, 816 (Black II), our Supreme Court held 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.”
It follows that the exception regarding a prior conviction applies not only to the fact of a prior conviction, but also to “an issue of recidivism which enhances a sentence and is unrelated to an element of a crime.” (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) Therefore, “‘the fact of a prior conviction,’ and related facts . . . may be judicially found at sentencing.” (United States v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) For instance, the trial court may determine and rely on the defendant’s probation or parole status to impose the upper term. (Cf. United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [“the ‘prior conviction’ exception extends to ‘subsidiary findings’ such as whether a defendant was under court supervision when he or she committed a subsequent crime”].)
The rationale for the recidivism exception is explained in the predecessor to Blakely and Cunningham, Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]. As Apprendi explained, one reason for the exclusion of prior convictions from the jury trial requirement for increased sentences is the “procedural safeguards attached to any ‘fact’ of prior conviction . . . .” (Id. at p. 488 [147 L.Ed.2d at p. 454].) Furthermore, the existence of a prior conviction “‘does not relate to the commission of the offense . . . .’” (Id. at pp. 488, 496 [147 L.Ed.2d at pp. 454, 458], quoting Almendarez- Torres v. United States (1998) 523 U.S. 224, 230, 244 [140 L.Ed.2d 350, 359, 368].) Finally, recidivism “is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence. [Citations.]” (Almendarez-Torres, supra, at p. 243 [140 L.Ed.2d at p. 368]; Apprendi, supra, at p. 488 [147 L.Ed.2d at p. 454].)
Here, in imposing the upper term sentence, the trial court found no mitigating factors and three aggravating factors -- the victim was “particularly vulnerable,” the crime “involved the threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness,” and defendant’s “prior performance on probation or parole has been unsatisfactory.”
Defendant’s poor performance on probation or parole arose from the prior convictions that led to his being placed on parole and probation, is not related to his current offense, and was established by reference to existing court records. There is no question his performance on probation and parole has been poor; defendant has suffered at least six violations of parole, and has violated probation numerous times, both as an adult and as a juvenile.
In Black, the Supreme Court took a broad view of the scope of the prior conviction exception. (Black II, supra, 41 Cal.4th at pp. 819-820.) Mindful of the California Supreme Court’s directive not to read the recidivism exception to Blakely “too narrowly” (id. at p. 819), we conclude defendant’s poor performance on parole and probation, as documented in the probation report, is a factor which is not subject to the rule of Blakely. Thus, notwithstanding the other factors the court relied on in imposing the upper term sentence, the trial court relied on at least one legally sufficient aggravating factor to sentence defendant to the upper term. Defendant therefore was not entitled to a jury trial on his upper term sentence.
We also conclude that even if defendant’s poor performance on probation and parole was subject to Blakely any resulting error would be harmless.
In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), a companion case to Black II, the California Supreme Court stated the test for harmless error (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466]) was whether the reviewing court could conclude, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury[.]” (Sandoval, supra, at p. 839.) In Sandoval, the error was not harmless, requiring reversal of the imposition of the upper term and a remand for resentencing. (Id. at pp. 840-843, 858.)
In determining the error was not harmless, the court in Sandoval noted several factors which weighed against a harmless error finding by a reviewing court. Our Supreme Court recognized “the reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.” (Sandoval, supra, 41 Cal.4th at p. 839.) Since aggravating circumstances are based upon facts which are not elements of the charged offense, a defendant typically lacks both the reason and opportunity to challenge these facts at trial. (Ibid.)
While a defendant can contest aggravating factors at sentencing, the sentencing hearing differs fundamentally from the trial. The standard of proof is lower, and the court, which need only rely on a single sentencing factor, has more discretion than the jury. (Sandoval, supra, 41 Cal.4th at pp. 839-840.) The difficulty with finding Blakely error harmless is further compounded when “a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard[.]” (Sandoval, supra, 41 Cal.4th at p. 840.)
In defendant’s case, while poor performance on parole or probation is subjective, the evidence which supports this aggravating circumstance is both objective and compelling. As we have already noted, defendant’s record includes at least six parole violations and numerous adult and juvenile probation violations. In light of this overwhelming evidence of defendant’s poor performance on parole and probation, even though this evidence was not presented at trial we are convinced beyond a reasonable doubt that a jury presented with this issue would have found the aggravating circumstance to be true beyond a reasonable doubt.
Since the jury would have found at least one aggravating factor to be true, any Blakely error in defendant’s sentence is harmless. (Sandoval, supra, 41 Cal.4th at p. 839.)
III.
Defendant asserts the trial court improperly calculated his sentence for attempted grand theft. Since we reversed the attempted grand theft conviction, defendant’s contention is moot.
DISPOSITION
Defendant’s conviction for attempted grand theft is reversed and the sentence thereon is vacated. In all other respects, the judgment is affirmed. The trial court is ordered to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P.J., BUTZ, J.