Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment in the Superior Court of Los Angeles County Super. Ct. No. VA073500. Dewey L. Falcone, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
In our original opinion in this case, filed on April 15, 2005, we reversed defendant’s sentence and remanded for resentencing in compliance with Blakely v. Washington (2003) 542 U.S. 296 (Blakely). On September 7, 2005, the California Supreme Court transferred the case to us, with directions to vacate our prior decision and reconsider in light of People v. Black (2005) 35 Cal.4th 1238 (Black I). We filed a new opinion on December 12, 2005, affirming the sentence. Then, the United States Supreme Court overruled Black I, granted certiorari in this case and vacated the judgment for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We hereby issue the following decision:
Defendant and appellant Jesus Xavier Acosta appeals from the judgment entered following a jury trial that resulted in his conviction of voluntary manslaughter. He contends: (1) the trial court prejudicially erred in failing to give CALJIC No. 2.01; and (2) the trial court committed sentencing error under Blakely and its progeny. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accord with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that defendant fatally shot Cesar Abrica, known as “Crank,” about 5:30 p.m. on October 16, 2002. The only real issue at trial was whether defendant acted in self-defense. In support of the prosecution’s theory of murder, witnesses testified that they saw Abrica running up Orchard Avenue, apparently being chased by defendant driving a gray Mustang. When Abrica ran up a driveway, defendant stopped the car and fired at Abrica through the driver’s side window. Defendant then sped away in the Mustang.
Abrica died from a single gunshot wound to the head. There was no soot or stippling at the point of entry. The medical examiner testified that the wound was consistent with someone running away and turning briefly sideways.
The defense presented evidence that Abrica associated with gang members. Defendant’s brother, girlfriend, and several friends testified that Abrica and Abrica’s friends had been harassing defendant and defendant’s friends for several months before the shooting, including chasing defendant, starting fist fights with him and threatening to “smoke” him.
Testifying in his own behalf, defendant could recall no incident that would have triggered his problems with Abrica. Defendant described more than half a dozen altercations between himself and Abrica in the year prior to the shooting. Fearful that Abrica’s threats to kill him were serious, defendant acquired a gun about a month before the shooting.
On the day of the shooting, defendant borrowed his girlfriend, Jessica’s, car to drive to a late morning dentist appointment. Three or four hours later, after having two teeth pulled, defendant drove himself home and took some medicine. Some time later, although drowsy and in pain, defendant went to the home of his friend, Marcos, where Marcos installed stereo speakers in Jessica’s car. Marcos and defendant then went clothes shopping, but defendant felt unwell, so he took Marcos home. After dropping Marcos off, defendant moved the gun from the back seat to the front.
On the way home, defendant saw Abrica walking across the street at the intersection of Bell and Orchard. Abrica threw some gang signs at defendant and told defendant to come over. Defendant stopped to talk to Abrica because he was tired of being afraid and wanted to tell Abrica to leave him alone; having the gun made him feel safer. While defendant continued driving, Abrica walked next to the car and the two men argued. Abrica called defendant names and repeated his threat that Abrica and his “homies” were going to “smoke” defendant. Abrica stopped walking at the driveway to 6629 Orchard Avenue. He looked around then suddenly bent down and reached for his waist in a manner that made defendant think Abrica was reaching for a gun. Believing that Abrica was going to shoot him, defendant grabbed his own gun from under the seat and shot Abrica. Defendant drove away in a panic. He denied chasing Abrica and maintained that Abrica was not running, but was walking alongside the Mustang. No gun or other weapon was found near Abrica’s body.
Defendant was charged with special circumstance first-degree murder. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(21).) Various gun use enhancements also were alleged. (§§ 12022.53, subds. (b), (c) &(d), 12022.55.) Following a jury trial, he was convicted of the lesser included offense of voluntary manslaughter (§ 190, subd. (a)); the jury found true a section 12022.5 gun use enhancement, but found not true the remaining enhancement allegations. Defendant was sentenced to 21 years in prison.
All further undesignated section references are to the Penal Code.
DISCUSSION
A. The Trial Court Was Not Required to Give CALJIC No. 2.01
Defendant contends the trial court prejudicially erred in failing to give CALJIC No. 2.01 (sufficiency of circumstantial evidence). He argues that the instruction was necessary because “the jury almost certainly convicted [defendant] because they concluded that his claim of self-defense was not reasonable because no weapons were found on or near the victim’s body.” We disagree.
CALJIC No. 2.01 reads: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to [his] [her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
CALJIC No. 2.02 was given. That instruction “was designed to be used in place of CALJIC No. 2.01 when the defendant’s specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence.” (People v. Honig (1996) 48 Cal.App.4th 289, 341; see Use Note to CALJIC No. 2.01 [“CALJIC 2.01 and CALJIC 2.02 should never be given together. This is because CALJIC 2.01 is inclusive of all issues, including mental state and/or specific intent, whereas CALJIC 2.02 is limited to just mental state and/or specific intent. Therefore, they are alternative instructions. If the only circumstantial evidence relates to specific intent or mental state, CALJIC 2.02 should be given. If the circumstantial evidence relates to other matters, or relates to other matters as well as specific intent or mental state, CALJIC No. 2.01 should be given and not CALJIC No. 2.02.” (Italics added.)]; see also Use Note to CALJIC No. 2.02 [same].)
As given, CALJIC No. 2.02 reads: “The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged in Count 1, that’s the murder count, or the crime of voluntary manslaughter based on intentional killing, which is a lesser crime, unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent or mental state but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to that specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to its absence, you must adopt that interpretation which points to its absence. [¶] If, on the other hand, one interpretation of the evidence as to the specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
Thus, to state defendant’s argument is to refute it. The only circumstantial evidence which defendant argues required the giving of CALJIC No. 2.01 was evidence probative of defendant’s mental state — i.e., the reasonableness of defendant’s belief that Abrica was going to shoot him. Since the only circumstantial evidence in this case related to defendant’s mental state, CALJIC No. 2.01 was unnecessary.
We are not persuaded to the contrary by appellant’s argument that the fact that no gun was found near Abrica’s body was circumstantial evidence probative of something other than defendant’s mental state and therefore required the giving of CALJIC No. 2.01. The circumstantial evidence that Abrica had been systematically harassing defendant and his friends supported the defense theory that defendant reasonably believed Abrica was going to shoot him. While the absence of any weapon at the scene may have been circumstantial evidence that Abrica was unarmed, the fact that Abrica may have been unarmed was circumstantial evidence that defendant’s belief in the need for self-defense was unreasonable. Thus, all the circumstantial evidence was probative of the issue of defendant’s mental state. As such, CALJIC No. 2.02 was the correct instruction.
B. Sentencing
In a supplemental opening brief, defendant contends the trial court committed sentencing error under Blakely because it imposed the upper term based upon aggravating factors not found true by the jury. We disagree.
The People’s argument that defendant forfeited his Blakely claim by failing to object at the sentencing hearing is not well taken. In People v. Black (2007) 41 Cal.4th 799, 812 (Black II), the court held that sentencing errors premised upon the principles established in Blakely and Cunningham are not forfeited on appeal by counsel’s failure to object at a trial that predated Blakely.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely, the high court clarified that the relevant “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.) In Cunningham, the United States Supreme Court invalidated the portion of California’s Determinate Sentencing Law that permits a judge to impose an upper term sentence based on aggravating sentencing factors, other than a prior conviction, that are not determined by a jury. (Cunningham, supra,549 U.S. at p. __ [127 S.Ct. at pp. 860, 843-864, 868].)
Applying Cunningham, our Supreme Court in Black II held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among three available options does not violate the defendant’s right to jury trial.” (Black II, supra,41 Cal.4th at p. 812.) “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Id. at p. 813.)
As for the breadth of the court’s authority to impose a high term sentence based on defendant’s recidivism, “the exception to the jury trial right for prior convictions, ‘is not limited simply to the bare fact of a defendant’s prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a “violent” felony) that renders the defendant subject to an enhanced sentence.’ [Citation.]” (People v. Yim (2007) 152 Cal.App.4th 366, 370 (Yim).) For example, in Black II, the court found that trial courts may properly decide, not just whether a defendant has suffered a prior conviction, but also whether such prior convictions are numerous or increasingly serious. (Black II, supra, 41 Cal.4th at pp. 819-820.) And in Yim, the court found parole status, performance on parole, having numerous prior convictions, and having served prior prison terms are all distinct aggravating factors any one of which will support a sentencing choice. (Yim, supra, at p. 369.)
The issue of whether a trial court can constitutionally impose an upper term sentence based on the fact that the defendant was on parole when the crime was committed, without a jury determination, is currently before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677. Whether a trial court can do so based on the fact of a juvenile adjudication is currently before that court in People v. Nguyen, review granted October 10, 2007, S154847 (formerly published at 152 Cal.App.4th 1205).
Here, among the aggravating circumstances articulated by the trial court were (1) the number and increasing seriousness of defendant’s prior convictions as an adult and sustained delinquency petitions and (2) the fact defendant was on probation at the time of the offense. Both circumstances are related to defendant’s recidivism and rendered him eligible for the high term under Black II. Therefore, defendant “was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence . . . .” (Black II, supra, 41 Cal.4th at p. 820.) That the court articulated additional factors not related to defendant’s recidivism is of no import because “[n]o matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
DISPOSITION
The judgment is affirmed.
I CONCUR: COOPER, P. J.