Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA266497, William R. Pounders, Judge.
Deborah L. Hawkins, 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, Senior Assistant Attorney General, Susan Sullivan Pithey, Deputy Attorney General, Robert David Breton, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Jose Jesus Barajas (defendant) of attempted second degree robbery (Pen. Code, §§ 664/211 ) and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury found true the allegations that defendant personally used a deadly and dangerous weapon in the commission of the attempted second degree robbery (§ 12022, subd. (b)(1)) and that defendant personally inflicted great bodily injury in the commission of the attempted second degree robbery and the assault with a deadly weapon (§ 12022.7, subd. (a)). The trial court found true the allegation that defendant suffered a prior conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and section 667, subdivision (a). The trial court sentenced defendant to state prison for 17 years and awarded him a total of 398 days of presentence custody credit consisting of 266 days of actual custody credit and 132 days of conduct credit.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that there is insufficient evidence to support his attempted second degree robbery and assault with a deadly weapon convictions; the trial court erred when it denied his motion to bar the prosecution from introducing evidence concerning certain items that were recovered from a truck at the scene but destroyed by the police, in bad faith, prior to his trial; the trial court erred when it failed to suppress certain items found in the truck during a warrantless search; the trial court’s imposition of an upper term sentence based on facts not found by a jury denied him due process as set forth in Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham); and the trial court improperly imposed a sentence enhancement for personally using a deadly and dangerous weapon on his sentence for assault with a deadly weapon. We asked the parties to submit supplemental briefs addressing the issue of whether defendant’s conduct credit should have been limited to 15 percent of his actual custody credit (§§ 667.5, subd. (c)(8), 2933.1, subd. (a)) and thus he was awarded too many days of presentence credit. We affirm the judgment of conviction, but order the sentence enhancement under section 12022, subdivision (b)(1) stricken and order the abstract of judgment modified to reflect that defendant has been awarded a total of 305 days of presentence credit consisting of 266 days of actual custody credit and 39 days of conduct credit.
BACKGROUND
At 8:50 a.m. on June 4, 2004, Jacinta Teresa Leyva Rosales arrived at the beauty salon she operated located in the 2300 block of South Vermont Avenue. The salon was closed when Rosales arrived and no one was inside. Rosales noticed a gray truck parked on the street. Rosales entered the salon and closed and locked the door behind her, intending to clean before opening the salon.
After Rosales locked the door, a man came to the door and knocked. Rosales had never seen the man before. She opened the door slightly and the man said he wanted a haircut. Because she wanted to finish cleaning her salon, Rosales asked the man to go to the salon across the street that was already open. The man responded that he wanted Rosales to cut his hair. Because she wanted the money, Rosales let the man in.
After the man entered her salon, Rosales turned away from him as she went to turn on the lights. The man put his arm around Rosales’s neck and struck her forehead near her right eye and temple. Next, the man pulled Rosales’s head back and struck her in the same place on the left side of her face, cutting her. Rosales struggled with the man who continued to hit her on the head. Rosales freed herself from the man’s grip and faced the man from about a foot and a half. Rosales turned and tried to run out the door, but the man grabbed her arm and pulled her back. When the man pulled Rosales’s arm, he cut her, inflicting a “very large” cut on her right arm. The man cut Rosales’s arms four times, leaving scars. Rosales did not see the weapon the man used to cut her.
Rosales screamed and asked the man to let her go and that she had a family. The man shouted, “You moron, give me the money.” Rosales repeatedly told the man that she had just opened and did not have any money. She told the man to take whatever he wanted and that she had not done anything to him to deserve his actions. The man struck her on the head. Rosales sat down on a sofa.
The man ran out of the salon and to the gray truck that Rosales had noticed when she arrived at work that morning. Shortly after the man ran out, Rosales locked the door. The man patted his pockets as though he was searching for his keys. Francisca Cervantes arrived at Rosales’s salon and Rosales let her in. Cervantes observed that the man at the truck patted his pockets and said, “He dropped his keys.” Cervantes was unable to see the man’s face.
The man leaned the upper half of his body into the truck through the open driver’s side window. The man then ran away, turning right on 23rd Street. Rosales opened the salon door again and saw a set of keys on the ground about five feet from the door.
At about 9:25 a.m., Los Angeles Police Department Officer Charles Schlund and his partner, Officer Collins, came to Rosales’s salon in response to her call. When the officers arrived, Rosales was sitting on a chair. She had lacerations to her forearms and forehead and was bleeding profusely. There was a large puddle of blood in the doorway that Officer Schlund assumed came from Rosales. Rosales was “upset and visibly shaken.” Officer Schlund had some difficulty communicating with Rosales, as she spoke Spanish and only “broken English” and neither Officer Schlund nor Officer Collins spoke Spanish. Rosales told Officer Schlund that the perpetrator was 17 years old and bald (defendant was 29 years old at the time of the incident) and pointed out the gray truck and keys.
Rosales was taken to the hospital where she received stitches for her wounds. While at the hospital, Rosales identified defendant’s photograph from a photographic lineup. The photograph in the lineup was taken from a data base and not from the identification card.
Officer Schlund examined the truck. All of the doors were closed, but one of the windows was open. There was blood spatter on the outside of the driver’s side door, blood droplets on the driver’s seat and floorboard, and blood in various other parts of the truck’s interior. The blood on and inside the truck was wet and appeared to be fresh. Defendant’s sister, Marlene Meza, and father, Jesus Barajas, were the registered owners of the truck. The truck was registered to their address at 3948 Second Avenue, Los Angeles.
Officer Schlund recovered a bloody razor blade, a package of razor blades, and a California identification card from the inside of the truck. The name on the identification card was “Jose de Jesus Barajas.” The address on the card was 3948 Second Avenue, Los Angeles. Officers Schlund and Collins booked the razor blades and identification card into evidence at the station. In February 2005, Los Angeles Police Department Detective Robert Pulido, the supervisor for the section investigating the incident at Rosales’s salon, authorized the destruction of the California identification card, the razor blades, and other pieces of evidence related to the incident at Rosales’s salon. That evidence was destroyed on March 23, 2005.
Los Angeles Police Department Detective Jeana Franco investigated the incident at Rosales’s salon. The police could not find defendant, and he was not arrested until November 3, 2005. Rosales identified defendant as the perpetrator at the preliminary hearing and at trial. At trial, Rosales estimated that she viewed defendant’s face for about 15 seconds prior to the attack. Defendant looked “completely different” at trial than he had on June 4, 2004. Rosales declined to estimate the perpetrator’s age or height, explaining that she had difficulty making such estimates. She indicated that her attacker was stocky with a large upper body and was “balding.” Rosales denied that she told a police officer on June 4, 2004, that her attacker appeared to be about 17-years-old.
Rosales testified that defendant returned to her salon four or five times after June 4, 2004. Initially, Rosales testified that defendant first returned to her salon in January 2005. Later she testified that it was mid 2005 and then that she could not remember the exact date. On two of the occasions, defendant got a haircut. Rosales testified both that she did not recognize defendant and that she could not remember if she recognized him. Defendant’s appearance had changed, he was nicely dressed and came into the salon as a family man with his wife and children. Rosales did not call the police on any of the occasions that defendant returned to her salon to tell them that her attacker might be in her salon.
Rosales testified that after defendant first returned to her salon, she told her employee, Jose Luis, that defendant looked like the person who had attacked her. Rosales did not tell anyone from the police department or the district attorney’s office about her statement to Jose Luis. When Rosales saw defendant at the preliminary hearing, she realized that the person who had come into her salon after June 4, 2004, was the man who had attacked her.
Rosales testified that she received a telephone call at her salon on June 11, 2005, from a person who identified himself as “Jose.” The caller said, “Teresita, it’s me. Forgive me. I didn’t mean to hurt you. Please forgive me.” The caller was crying and identified himself as the person who had attacked her. Rosales did not recognize the caller’s voice. Rosales reported the telephone call to the police but did not remember if she told them that the caller identified himself as “Jose.” Detective Franco testified that Rosales did not tell her that the caller identified himself as “Jose” and the only statement from the call that Rosales reported was “please forgive me.” Rosales told Detective Franco that the telephone call was a “three-way phone call” and that her caller identification showed the call came from “Felisitas Ayala.” Rosales gave Ayala’s telephone number to Detective Franco. Detective Franco’s interpreter called Ayala’s telephone number. The person who answered that call said she did not know defendant.
In his defense, defendant called his father, Barajas, and “Felicitas Ayala.” Barajas testified that defendant did not live with him at 3948 Second Avenue in June 2004; defendant lived with his wife and children. Defendant did not have a key to his father’s house. Barajas’s daughter and her husband, who lived with Barajas, drove the gray truck and had the keys to the truck. Ayala testified that she knew Rosales; she had been getting her hair cut at Rosales’s salon for about three years. Ayala testified that she did not know defendant and had never allowed him to call her telephone number and then put his call through to Rosales as a third party call.
DISCUSSION
I. Sufficiency of the Evidence Supporting Defendant’s Convictions
Defendant asserts that insufficient evidence supports his convictions for attempted second degree robbery and assault with a deadly weapon because the evidence failed to establish his identity as the perpetrator of those crimes. Defendant contends that eyewitness testimony generally and Rosales’s testimony specifically is unreliable. Sufficient evidence supports defendant’s convictions.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The reviewing court must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Defendant describes Rosales’s trial testimony as “inherently contradictory and evasive.” Officer Schlund testified that Rosales described her attacker as 17 years old. Defendant was 29 years old at the time of the incident. Rosales testified that defendant looked “completely different” at trial than he had on June 4, 2004. Rosales declined to estimate the perpetrator’s age or height, explaining that she had difficulty making such estimates. She indicated that her attacker was stocky with a large upper body.
Defendant contends that had Rosales had a brief opportunity to view her attacker and was under great stress. Rosales estimated that she viewed defendant’s face prior to the attack for about 15 seconds. She was unable to estimate the length of the entire incident, but testified that five minutes seemed too long. The incident left Rosales “upset and visibly shaken.” Although Rosales had identified defendant in a photographic lineup in the hospital after the incident, in her initial testimony, she testified that she did not recognize defendant as the perpetrator when he came into her salon four or five times after June 4, 2004, even though she cut his hair on two of those occasions.
According to defendant, Rosales “tried to evade her earlier statement that the attacker was ‘bald’ by saying that she meant ‘balding’ in the pattern of hair loss that [defendant] exhibited.” Rosales’s testimony was also “highly evasive” when she changed her testimony during trial concerning the date defendant first entered her salon after the June 4, 2004, incident; when she claimed, for the first time at trial, that she told a salon employee that defendant resembled her attacker the first time defendant entered the salon after the June 4, 2004, incident; and when she claimed, for the first time at trial, that the person who called her on June 11, 2005, to apologize identified himself as “Jose”.
Rosales identified defendant from a photographic lineup in the hospital, she identified him at the preliminary hearing, and she identified him at trial. Rosales’s identifications are sufficient evidence to support defendant’s convictions. “It is well settled that, absent physical impossibility or inherent improbability, the testimony of a single eyewitness is sufficient to support a criminal conviction.” (People v. Allen (1985) 165 Cal.App.3d 616, 623.) Contradictions or evasions in Rosales’s testimony, if any, went to the weight the jury was to give that testimony, not to the testimony’s sufficiency to support defendant’s convictions. We do not “reweigh the evidence and draw inferences which were rejected by the jury.” (People v. Klvana (1992) 11 Cal.App.4th 1679, 1703.) “Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate.” (People v. Allen, supra, 165 Cal.App.3d at p. 623.) Rosales’s identifications were neither physically impossible nor inherently improbable. Based on Rosales’s identifications, a reasonable jury could have found the defendant guilty of attempted second degree robbery and assault with a deadly weapon beyond a reasonable doubt.
Moreover, defendant’s convictions do not rest solely on Rosales’s identifications of defendant as the person who attempted to rob her and assaulted her. Defendant’s identification as the perpetrator and his convictions are supported by substantial other evidence. The truck registered to defendant’s father and sister was parked near the front of Rosales’s salon at the time of the offenses. The perpetrator attempted to flee from the scene in that truck. Defendant’s identification card was found in the truck, the truck had fresh blood spatter on it, and a bloody razor blade was found in the truck.
II. Defendant’s Trombetta /Youngblood Motion
California v. Trombetta (1984) 467 U.S. 479.
Arizona v. Youngblood (1988) 488 U.S. 51.
Defendant contends that the trial court erred in denying his motion to bar the prosecution from introducing evidence that the police found his California identification card, the bloody razor blade, and the package of razor blades in the gray truck parked near the front of Rosales’s salon because the police destroyed those items, in bad faith, prior to trial. The trial court properly denied defendant’s motion.
A. Standard of Review
On review of a Trombetta/Youngblood motion, “we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling. (People v. Griffin (1988) 46 Cal.3d 1011, 1022.)” (People v. Roybal (1998) 19 Cal.4th 481, 510.)
B. Relevant Principles
“‘“Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a significant role in the suspect’s defense.’ (California v. Trombetta (1984) 467 U.S. 479, 488 [104 S.Ct. 2528, 2535, 81 L.Ed.2d 413] [Trombetta]; accord, People v. Beeler (1995) 9 Cal.4th 953, 976 [39 Cal.Rptr.2d 607, 891 P.2d 153].) To fall within the scope of this duty, the evidence ‘must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citations.] The state’s responsibility is further limited when the defendant’s challenge is to ‘the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ (Arizona v. Youngblood (1988) 488 U.S. 51, 57 [109 S.Ct. 333, 337, 102 L.Ed.2d 281].) In such case, ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ (Id. at p. 58 [109 S.Ct. at p. 337]; accord, People v. Beeler, supra, 9 Cal.4th at p. 976.)” [Citation.]’ (People v. Catlin [2001] 26 Cal.4th [81], 159-160.)” (People v. Farnam (2002) 28 Cal.4th 107, 166.)
C. Application of Relevant Principles
Prior to trial, defendant moved to bar the prosecution from introducing evidence that the police recovered defendant’s California identification card, the bloody razor blade, and the package of razor blades from the gray truck parked near the front of Rosales’s salon as a sanction for the police department’s destruction of that evidence. At the hearing of defendant’s motion, Detective Franco testified that she believed the responding officers, Officers Schlund and Collins, booked the items recovered from the gray truck in evidence. Once Officers Schlund and Collins filed their report, Detective Franco was responsible for the case.
Detective Franco explained that when the police department’s booking department initially books evidence, the evidence is held automatically for 90 days. On the first day of every month thereafter, a property disposition form is sent to the responsible officer through the officer’s supervisor – in Detective Franco’s case, Detective Pulido – inquiring whether to hold or destroy the evidence. The responsible officer fills out the form and returns it to the property disposition officer.
The evidence at issue in this case was destroyed in March 2005. Detective Franco did not recall receiving a property disposition form from Detective Pulido prior to the destruction of the evidence, but reasoned that she must have because the automatic hold on evidence is only 90 days, and the evidence in this case was held for eight or nine months before being destroyed. Detective Pulido authorized the destruction of the evidence without first consulting with Detective Franco. Had Detective Franco been consulted, she would not have authorized the destruction of the evidence. Detective Franco believed that the destroyed items were “material and important” pieces of evidence in the case, but that none of the evidence was favorable to defendant.
The trial court denied defendant’s motion. It held that the destroyed evidence was “quite incriminatory, not exculpatory at all.” The trial court also held that there was no bad faith in the destruction of the evidence – “[t]his is the left hand not knowing what the right hand was doing.” We agree.
1. Apparent Exculpatory Value
Defendant contends that the identification card and razor blades had an apparent exculpatory value. Substantial evidence supports the trial court’s finding that the destroyed evidence did not have an apparent exculpatory value. (People v. Roybal, supra, 19 Cal.4th at p. 510.)
Defendant, age 29 at the time of the attempted robbery, argues that the identification card had an apparent exculpatory value because Officer Schlund took his description of the suspect from that card rather than from Rosales who described the perpetrator as a 17-year old bald male. Officer Schlund, defendant reasons, then extrapolated from the presence of defendant’s identification card in the truck that defendant was the perpetrator without considering that the presence of the card did not “definitively establish” that defendant was in possession of the truck that morning. The identification card had no apparent exculpatory value.
The importance of the identification card is not how defendant was depicted in the photograph but that defendant’s identification card was found in a truck at the scene of the attempted robbery under circumstances that strongly suggested that the perpetrator traveled to Rosales’s salon in the truck – the perpetrator ran to the truck after the offense and, after apparently looking for keys without success, fled on foot; Rosales was severely cut during the attempted robbery; fresh blood was found on and in the truck; and a bloody razor blade and a package of razor blades were found in the truck. Rosales identified defendant from a photographic lineup shortly after the attempted robbery. The photograph in the lineup was taken from a data base and not from the identification card. Thus, at the time the evidence was later destroyed in March 2005, the only apparent evidentiary value the identification card held was to place defendant at the scene of the attempted robbery. That defendant’s appearance in the photograph on that card might have been different from his appearance in the photograph in the photographic lineup or his appearance in person at trial has no exculpatory value.
As for the bloody razor blade and package of razor blades found in the truck, defendant appears to accept the prosecutor’s assertion that no fingerprints were found on the blades. He argues, however, that “the defense clearly would have wanted DNA testing on the items, particularly the blood on the razor.” Defendant asserts that because the bloody razor blade was two-sided, one would expect that his blood would have been on that blade if he had used it in the manner Rosales described. Also, defendant speculates, “it is possible that skin fragments could have been found and tested for DNA.” Defendant makes no specific argument about any claimed apparent exculpatory value of the package of razor blades.
The apparent value of the bloody razor blade is inculpatory, not exculpatory. Although defendant could have tested the bloody razor blade DNA, it logically would have appeared to the police, at the time the razor blades were destroyed in March 2005, that the blood on the razor blade belonged to Rosales.
2. Bad Faith
Defendant contends that the trial court should have found that the evidence was destroyed in bad faith because Detective Franco believed the evidence was material, and the evidence was destroyed under Detective Pulido’s authority even though Detective Pulido “had to know that a warrant was outstanding for [defendant’s] arrest.” Substantial evidence supports the trial court’s finding that the police did not destroy the evidence in bad faith. (People v. Roybal, supra, 19 Cal.4th at p. 510.)
The record demonstrates that the destruction of the alleged exculpatory evidence was the product of a failure in communication and not bad faith. Detective Franco testified that under police department procedure, the officer responsible for evidence is to be consulted before evidence is destroyed. She testified that she had not been consulted and that she would not have authorized the destruction of the evidence if she had been consulted. As the trial court observed, “[t]his is the left hand not knowing what the right hand was doing.”
III. Defendant’s Motion to Suppress the Evidence Found in the Gray Truck
Defendant contends that the warrantless search of the gray truck near Rosales’s salon by the police violated his Fourth Amendment right to be free from unreasonable searches and seizures. Accordingly, defendant contends, the trial court should have granted his section 1538.5 motion to suppress the evidence found in the truck. We disagree.
In United States v. Ross (1982) 456 U.S. 798, 808-809, the United States Supreme Court held that a warrantless search of an automobile legitimately stopped will not violate the Fourth Amendment if the officers had probable cause, based on objective facts that could justify issuance of a warrant, to believe the car contained contraband. Probable cause for a warrantless search of a car exists when, given all of the circumstances, there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238; People v. Dumas (1973) 9 Cal.3d 871, 885.) In Maryland v. Dyson (1999) 527 U.S. 465, the Supreme Court explained that “the ‘automobile exception’ has no separate exigency requirement.” (Id. at p. 466.) “‘If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more.’ [Citation.]” (Id. at p. 467.)
Prior to trial, defendant moved to suppress all evidence found by the police in the truck in the June 4, 2004, search. This evidence consists of defendant’s California identification card, the bloody razor blade, and the package of razor blades. Defendant did not dispute that there was probable cause to search the truck. Instead, he argued that there were no exigent circumstances to justify a warrantless search. The trial court denied defendant’s motion, finding that the truck was readily mobile, that there was a lower expectation of privacy in the truck, and that there was probable cause to search the truck. Defendant renewed his motion at trial. The trial court denied the motion, but deemed defendant to have a continuing objection.
On appeal, defendant does not contend that the police lacked probable cause to search the truck. Instead, citing Maryland v. Dyson, supra, 527 U.S. at pages 466-467, among other cases, he contends that the warrantless search of the truck was constitutionally impermissible because the truck was not “readily mobile.” The police officers who searched the truck knew it was not readily mobile, defendant asserts, because they knew that defendant had fled on foot after he was unable to enter the truck, and they had possession of the truck’s keys. The truck was readily mobile.
The automobile exception’s “readily mobile” requirement is satisfied when “a vehicle is being used on the highways, or . . . is readily capable of such use . . . .” (California v. Carney (1985) 471 U.S. 386, 392.) The perpetrator’s actions with respect to the truck establish that the truck was capable of being driven. After the attempted robbery, the perpetrator ran to the truck apparently intending to flee in it. The perpetrator could not flee in the truck, however, because he had dropped the keys. Officer Schlund testified at the suppression hearing that the police had received a report that a possible suspect was still in the area and no evidence was presented at the suppression hearing that there was only one set of keys for the truck. The suspect could have obtained a second set of keys and moved the truck.
IV. Defendant’s Blakely/Cunningham Claim
Defendant contends that the trial court’s imposition of the upper term sentence for his assault with a deadly weapon conviction (§ 245, subd. (a)(1)) based on facts not found true beyond a reasonable doubt by a jury violates his rights to a jury trial and to due process under the United States Constitution. We disagree.
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court held that California’s determinate sentencing law violated the Sixth Amendment insofar as it authorized trial judges, rather than juries, to make factual findings that expose defendants to upper term sentences. (Cunningham, supra, 127 S.Ct. at pp. 868-871.) Following Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
“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 . . . the upper term sentence is the ‘statutory maximum.’ ” (Black, supra, 41 Cal.4th at p. 813 .) The mere presence of prior convictions that could justify an upper term is insufficient to justify such a term; the trial court must actually rely on the prior convictions. (People v. Cardenas (2007) 155 Cal.App.4th 1468, 1478-1483.) The trial court may rely upon a defendant’s record of juvenile sustained petitions as an aggravating circumstance when imposing an upper-term sentence. (California rules of Court, rule 4.421(b)(2) (rule 4.421(b)(2)).
The Supreme Court granted review in People v. Tu (2007) 154 Cal.App.4th 735 (S156995) which held, inter alia, that a juvenile adjudication fell within the recidivism exception discussed in Black, supra, 41 Cal.4th 799.
The Sixth Amendment does not confer a right to a jury trial on either “the fact that a prior conviction occurred” or “other related issues that may be determined by examining the records of the prior convictions” (Black, supra, 41 Cal.4th at p. 819), including “whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’” within the meaning of rule 4.421(b)(2). (Id. at pp. 819-820; see also Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) Furthermore, although California law requires proof beyond a reasonable doubt of alleged prior convictions used to justify a recidivist sentence (see, e.g., People v. Bowden (2002) 102 Cal.App.4th 387, 392-393, 125 Cal.Rptr.2d 513), facts relating to prior convictions found to be aggravating circumstances for purposes of imposing an upper-term sentence are not subject to proof beyond a reasonable doubt, but may be found by a preponderance of the evidence. (Black, supra, 41 Cal.4th at p. 820, fn. 9.) Accordingly, as the Supreme Court concluded in Black, “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.” (Id. at p. 816.)
We review Cunningham error for prejudice under the harmless beyond a reasonable doubt standard for federal constitutional error. (People v. Sandoval (2007) 41 Cal.4th 825, 839.) If we 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, the Sixth Amendment error properly may be found harmless.” (Ibid.)
In sentencing defendant to the upper term for his assault with a deadly weapon conviction, the trial court stated, “I think it well justifies the high term of eight years, the attack well beyond what was necessary to accomplish any objective, and without any justification. [¶] . . . [¶] Considering defendant’s prior conviction as an adult, that’s serious as well as this current one. The pending second case, item three, I’m not going to consider and strike that as an aggravating—circumstances in aggravation. [¶] It does indicate though that the present and former prior offenses indicated a serious danger to the community, which is exactly what I’m saying. I have no confidence that when he’s free on the street, whether he’s addicted or not, that his burst of outrage against others is not going to continue. [¶] They’re also suggesting planning, sophistication, professionalism. It certainly was planned. There was premeditation, so that is also an aggravating circumstance.” The trial court found no circumstances in mitigation.
Defendant’s probation report reflects a prior sustained juvenile petition, apparently for receiving stolen property (§ 496) and theft and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) in connection with riding in a stolen vehicle; a prior conviction for attempted murder (apparently the conviction the trial court referred to as defendant’s “prior conviction as an adult”) (§ 664/187); and a conviction for driving under the influence (Veh. Code, § 23152, subd. (a)). The probation report reflects that defendant served a prison term for his attempted murder conviction.
Because the probation report and the prosecution’s sentencing memorandum list as a circumstance in aggravation the fact that defendant’s “prior convictions as an adult or adjudications of commission of crimes as a juvenile are numerous or of increasing seriousness,” we interpret the trial court’s findings with respect to defendant’s “present and former prior offenses” to encompass and satisfy the “numerous” component of rule 4.421(b)(2). Under Black, the trial court was permitted to find that defendant suffered the sustained juvenile petition and convictions, thus freeing the trial court to rely on other, non-recidivist factors in sentencing defendant to the upper term. (Black, supra, 41 Cal.4th at p. 813 & 818, citing People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].) Accordingly, we hold there was no Cunningham error.
V. The Section 12022, Subdivision (b)(1) Sentence Enhancement for Defendant’s Assault with a Deadly Weapon Conviction
Defendant contends that the trial court improperly imposed a sentence enhancement under section 12022, subdivision (b)(1) on his conviction for assault with a deadly weapon under section 245, subdivision (a)(1). Respondent agrees, as do we.
The trial court imposed a one-year sentence enhancement under section 12022, subdivision (b)(1) on defendant’s sentence for assault with a deadly weapon. “A conviction under section 245, subdivision (a)(1) cannot be enhanced pursuant to section 12022, subdivision (b). (People v. McGee (1993) 15 Cal.App.4th 107, 110 [19 Cal.Rptr.2d 12].)” (People v. Summersville (1995) 34 Cal.App.4th 1062, 1069-1070.) Accordingly, the trial court erred, and we strike the enhancement. (Ibid.)
VI. Defendant’s Presentence Credit
Pursuant to sections 2933.1, subdivision (a) and 667.5, subdivision (c)(8), conduct credit for a defendant who inflicts great bodily injury in the commission of a felony is limited to 15 percent of actual custody credit. A trial court is to calculate conduct credit to the largest whole number not exceeding 15 percent. (People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Ramos (1996) 50 Cal.App.4th 810, 815-816.) In our credit calculations, we include the date of arrest (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124) and the date of sentencing (People v. Smith (1989) 211 Cal.App.3d 523, 525-526).
Defendant was arrested on November 3, 2005. The trial court sentenced defendant on July 26, 2006, and awarded him a total of 398 days of presentence custody credit consisting of 266 days of actual custody credit and 132 days of conduct credit. For the period from and including November 3, 2005, to and including July 26, 2006, defendant is entitled to 266 days of actual custody. (People v. Lopez, supra, 11 Cal.App.4th at p. 1124; People v. Smith, supra, 211 Cal.App.3d at pp. 525-526.) Based on 266 days of actual custody credit, defendant is entitled to 39 days of conduct credit. (§§ 2933.1, subd. (a) & 667.5, subd. (c)(8); People v. Duran, supra, 67 Cal.App.4th at p. 270; People v. Ramos, supra, 50 Cal.App.4th at pp. 815-816.) Accordingly, defendant is entitled to a total award of presentence credit of 305 days and not 398 days. The parties agree.
DISPOSITION
The judgment is affirmed. The sentence enhancement under section 12022, subdivision (b)(1) is ordered stricken and the abstract of judgment is ordered modified to reflect that defendant has been awarded a total of 305 days of presentence credit consisting of 266 days of actual custody credit and 39 days of conduct credit.
We concur: TURNER, P. J., ARMSTRONG, J.