Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF114644A. Richard J. Oberholzer, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Appellant Pablo Diaz Bejar was charged with continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a).) The child victim, Cindy R., testified at length of appellant’s specific acts of molestation occurring over a period of several years. Additionally, an investigating officer who was fluent in Spanish was allowed to testify regarding the ordinary meaning of the word “mama” in the Spanish language. The reason the prosecutor elicited testimony on the meaning of this word was that appellant, in a phone conversation with the minor victim, addressed her as “mama.” Appellant was convicted as charged, and the trial court sentenced him to the upper term of 16 years after finding that several factors were in aggravation and none in mitigation. Appellant contends the trial court prejudicially erred by (1) admitting the testimony regarding the meaning of the Spanish word and (2) sentencing him to the upper term in violation of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). We will affirm.
FACTS AND PROCEDURAL BACKGROUND
Prosecution Case
The prosecution presented evidence showing that between early 2002 and late 2005, Cindy R. was repeatedly molested by appellant, who was her stepfather, at three different residences occupied by Cindy R., her siblings, her mother and appellant. The three residences were referred to by general location as Pinon Springs, Clyde Street and Rosedale Highway.
Although Cindy R.’s mother, Cynthia A., never married appellant, Cindy referred to appellant as her “step dad,” and Cynthia A. considered appellant to be her (Cynthia’s) common law husband.
The predominant evidence of appellant’s guilt was Cindy R.’s testimony, which we now summarize. The first incident occurred when Cindy R. was approximately 10 years of age, at the Pinon Springs residence. Cindy R. testified that one night she went outside to get something from her mother’s truck, and appellant came from behind her, put his hands across her chest, hugged her and touched her breasts. Cindy R. told him to stop, to take his hands off of her. She tried to push him away, but could not. Appellant threatened that if she told anyone what happened, he would kill her mother. She believed appellant because “he would always hit my mom.”
Cindy R. was born in 1992. She was 14 years old at the time of trial.
The next day, while Cindy R. was alone in the small pool in the backyard, appellant got into the pool with her. He asked if she told anyone what happened, she said “No,” and he repeated his threat to kill her mom if she told anyone. He then grabbed Cindy R., put her on top of his lap and inserted his finger in her vagina for several minutes. It hurt and she was scared, and she told him repeatedly to stop. The incident ended when she heard her mother arrive and she jumped out of the pool and ran inside. She did not say anything because she was afraid.
Cindy R. also testified that on several occasions at the Pinon Springs residence, appellant would come into the bedroom while she was asleep and kiss her. Appellant would try to open Cindy R.’s mouth with his tongue, but she would not let him. When Cindy R. told appellant to stop, he would again threaten to kill her mother. Other incidents occurred in the laundry room. On about 15 occasions, appellant would tell Cindy R. to go to the laundry room and meet him there. While in the laundry room, which was in the garage, appellant would pull up her clothes and touch her breasts and vagina, and kiss her mouth and breasts. Once, when Cindy R. refused to go into the laundry room with appellant, he threatened her by saying, “You do that one more time and I will kill your mom.” From then on, Cindy R. complied with appellant’s demands to go to the laundry room, because she was afraid he would hurt her mother.
In October or November of 2003, Cindy R. and her family moved to a house on Clyde Street. There, appellant continued to molest and threaten Cindy R. Following the same pattern as he used at the prior residence, appellant would tell Cindy R. to meet him in the laundry room. She thought this occurred about every other day during the 10-month period the family lived on Clyde Street. Once inside the laundry room with Cindy R., appellant would close the door, lift up Cindy R.’s shirt, and kiss her breasts and mouth. He also unzipped her pants and put his finger in her vagina. While he was molesting her, appellant told Cindy R. he “liked” her. Once, while Cindy R. was home from school with a fever, appellant entered her bedroom, pulled off her clothes and kissed her vagina.
Cindy R. recalled that her family moved to the residence on Rosedale Highway in June of 2004 or 2005. At the time, Cindy R. was 12 years old. The appellant’s conduct of molesting and threatening Cindy R. continued at the Rosedale Highway residence. On one occasion, appellant entered Cindy R.’s bedroom while she was sleeping and started kissing her vagina. The last time appellant touched Cindy R. was shortly before the family moved to Minnesota in the fall of 2005. At that time, appellant touched her and kissed her mouth and breasts. At the Rosedale Highway house, appellant continued to make the threat that if Cindy R. told anyone, he would kill her mother. The only times the molestation stopped was when appellant was in jail or prison, or when the family was briefly in Minnesota.
After a one-month stay in Minnesota, Cindy R., her mother and siblings moved back to California. Shortly thereafter, when Cindy R. learned that appellant was in prison, she decided to tell her sister what appellant had done to her. Cindy R. felt that she had to say something because her mother, Cynthia A., had talked about getting back together with appellant once he was released, and Cindy R. did not want appellant to keep molesting her “all [of her] life.” On February 9, 2006, Cynthia A. took Cindy R. to a domestic violence center and the matter was reported to the police.
In addition to Cindy R.’s account of what happened, the prosecution case included testimony of the investigating police officers, the purpose of which was to show that Cindy R.’s statements in court were basically consistent with what she told the officers. Officer Claudia Payne testified that she conducted an initial interview of Cindy R. and Cynthia A. on February 9, 2006. Officer Payne summarized Cindy R.’s description of events, and the time frame involved. Further, Officer Payne noted Cynthia A.’s statements that Cindy R.’s grades improved dramatically when appellant was gone, and that when appellant was home he favored Cindy R. by buying her things.
There were some variations in what Cindy R. reported to Officer Payne and what she testified to in court. Also, it was only after being reminded of what she told Officer Darbee that Cindy R. specifically testified that appellant touched her breasts in the first incident, i.e., when she went outside to retrieve something from the car.
During a break in Officer Payne’s testimony, outside the presence of the jury, the court was informed by defense counsel that appellant would be testifying. The trial court admonished appellant regarding his right to remain silent, and appellant was questioned to ensure his decision to testify was informed and voluntary. Afterwards, when the trial continued and Officer Payne returned to the stand, the prosecutor asked the officer, who is fluent in the Spanish language, to explain the usage and meaning of the term “mama” in Spanish. Officer Payne explained that a man would commonly use the term with reference to adult females, such as a spouse, girlfriend or the mother of one’s children, but the term would not be used to refer to a daughter or stepdaughter.
Officer Bill Darbee, a Detective with the Bakersfield Police Department, was assigned to the case and also interviewed Cindy R. He recounted what Cindy R. told him about the various acts of molestation. Officer Darbee did not order a sexual assault medical examination because he did not believe there would be any evidence produced and the examination is extremely intrusive.
When Officer Darbee interviewed appellant in prison, a telephone call from appellant to Cindy R. was arranged. Cindy R. remembered the phone call. At the outset of this telephone call, as later admitted by appellant, he referred to Cindy R. as “mother.”
Cindy R.’s mother, Cynthia A., also testified for the prosecution. She stated that on July 31, 2006, after appellant’s arrest, she received a telephone call from appellant. In that call, appellant asked Cynthia A. to help him get the charges dismissed. He asked her to convince Cindy R. to say that she had lied about the molestation in order to avoid going back to Minnesota. Appellant told Cynthia A. that he would give her whatever she wanted and that he could help her even more if he was out of jail. He suggested that Cynthia A. keep the land they owned together in Mexico and the $3,000 in cash that was delivered to their residence. Cynthia A. also testified that appellant treated Cindy R. much better than the other children and he would buy Cindy R. anything she wanted. According to Cynthia A., the way Cindy R. would constantly sit on appellant’s lap was abnormal.
Defense Case
The defense case consisted primarily of appellant’s own testimony in which he denied ever touching Cindy R. in a sexual way. Appellant indicated where he and his family had lived over the past several years and explained that he was in jail or prison for considerable periods of time. Appellant admitted having a telephone conversation with Cindy R. while he was in jail and that he called Cindy R. “mother” at that time. He said it was not a slip of the tongue. He sometimes called her “mother” as well as “meja” or by her name.
“Meja” is apparently the phonetic spelling of “mija” or “mi hija,” which means “my daughter” in Spanish.
Additionally, two investigators, i.e., McKinley Mosley and Arnie Rios, testified in regard to particular details learned in their investigations, such as the dates in which Cindy R. and her family lived at various residences, the existence of a community pool at the Pinon Springs residence, and the location of an “out-shed” used as a laundry area at the Clyde Street residence. This testimony was apparently an effort by the defense to impeach Cindy R.’s testimony as to these particulars.
Mosley was an investigator for the District Attorney’s Office, while Rios was an investigator for the Kern County Public Defender’s Office.
Verdict and Sentencing
On September 15, 2006, the jury found appellant guilty of continuous sexual abuse of a child in violation of Penal Code section 288.5, subdivision (a). At the sentencing hearing, the trial court found there were four factors in aggravation: (1) appellant was on felony probation or parole when the crime was committed, (2) appellant’s prior performance on felony probation was unsatisfactory, (3) the crime involved a threat of great bodily harm to both victim and family, and (4) appellant violated a position of trust, as the victim’s stepfather. The trial court found there were no circumstances in mitigation. Accordingly, appellant was sentenced to the upper term of 16 years and probation was denied. This appeal followed.
DISCUSSION
Appellant raises two issues on appeal. First, appellant contends the trial court erred by allowing Officer Payne to testify about the common usage of certain Spanish words. Second, appellant contends there was sentencing error based on Cunningham, supra, 549 U.S. __ [127 S.Ct. 856]. For the reasons explained hereafter, we reject both contentions.
I. Admission of Testimony on Usage of Spanish Words Not Prejudicial Error
Appellant argues the testimony as to the usage of the words “mama” and “meja” in the Spanish language was improperly admitted since it was irrelevant, lacked foundation and was improper opinion testimony. In the alternative, appellant argues he had ineffective assistance of counsel regarding this evidence and the failure to counter it.
A. Background
We begin with a brief summary of the background and context of how the evidence was introduced. At trial, the prosecutor asked Cindy R. if she remembered a telephone call with appellant sometime after she reported the molestations. She confirmed that she did speak to him once on the telephone while he was in jail. Defense counsel immediately requested a sidebar conversation. Outside the presence of the jury, defense counsel stated he was “caught by surprise” because he understood that the prosecutor was not going to ask about appellant’s statements made at the jail. The prosecutor conceded he would not inquire about the interrogation itself, but he did want to ask about what appellant told Cindy R. in the phone call from jail, including his apology and request that she forgive him. Defense counsel objected, arguing that appellant’s statements to Cindy R. in the prearranged phone call were involuntary and were made with an understanding his apology would not be used against him. When defense counsel urged the court to take time to review the transcript of the jail interviews (including the apology), the prosecutor agreed not to “get into this whole area now.” But should appellant testify, the prosecutor indicated he would pursue it further.
Counsel referred to the telephone conversation as occurring while appellant was in “jail,” although a subsequent stipulation indicated it actually occurred while he was in Wasco State Prison.
The following day, out of the presence of the jury during a break in Officer Payne’s testimony, defense counsel announced his intention to call appellant as a witness. The trial court admonished appellant to make sure his decision to testify on his own behalf was informed and voluntary.
Thereafter, when the jury returned, Officer Payne continued her testimony. During redirect examination, the following exchange occurred:
“[PROSECUTOR]: Are you fluent in Spanish?
“[OFFICER PAYNE]: Yes, I am.
“[PROSECUTOR]: Are you familiar with the term ‘mama’? (sic)
“[OFFICER PAYNE]: Yes.
“[PROSECUTOR]: How is that word used?
“[OFFICER PAYNE]: What a child would refer to their mother.
“[PROSECUTOR]: [Are] there cases where a man is referring to a young child as ‘mama’ or ‘mother’? (sic)
“[OFFICER PAYNE]: In my family and in the town [where] I grew up in Mexico, usually a father refers to a female, a daughter as ‘meja’ and the son as ‘mejo[.]’ Normally ‘mama’ is used for mother.”
Defense counsel moved to strike this testimony as irrelevant. The trial court overruled the objection, explaining that there was a reference to those “term[s]” (i.e., “meja” or “mama”) in some part of the earlier testimony, and providing a definition or translation would be helpful in understanding what was meant. Defense counsel then objected based on lack of foundation. Again, the trial court overruled the objection, noting that the members of the jury could give the testimony “the weight they deem appropriate.”
After the prosecutor asked more questions to confirm Officer Payne’s fluency in Spanish, he continued with the same line of questioning. He inquired whether it would be “appropriate” for a stepfather or father to call a daughter “mama,” to which Officer Payne replied it would not. When the prosecutor proceeded to ask “why not,” defense counsel objected that no foundation existed for this witness to say how every Hispanic person uses the word. The trial court overruled the objection, explaining that she could give her opinion on the word’s common meaning. The prosecutor rephrased his question as follows: “[I]s the common usage to call your daughter or stepdaughter mama?” Officer Payne responded “[n]o,” explaining that the term “referred to an adult female whether it’s your spouse, your girlfriend, your live-in, or the mother of your children. Just refers to an adult female.”
Defense counsel did not object to the officer’s “translation of words[,] if that’s all we’re dealing with, fluency in Spanish.” However, he reiterated his objection to any testimony about what the terms may mean “generally in the Hispanic culture.” The trial court overruled, explaining as follows:
“Your objection is overruled because what they mean culturally, that is what the general meaning of it is. Means nothing to me. When somebody says ‘it’s raining cats and dogs,’ and I don’t know the language, I think that cats and dogs are coming out of the air outside. But I happen to know that culturally it’s raining hard. So I think that she has that capability based on the foundation to give that analysis of what the terms mean.”
On cross-examination, defense counsel asked Officer Payne whether she had any formal training or courses in Hispanic culture and/or linguistics of the Mexican people. She admitted she had none. No formal training, she said, “Just my family.”
When appellant took the stand the next day, the prosecutor asked appellant about how he addressed Cindy R. in the telephone call to her from prison. Defense counsel objected that the statements were part of an involuntary interrogation. The prosecutor responded that he was only inquiring about appellant’s nontestimonial salutation -- i.e., how he addressed Cindy R. in the phone call. The trial court overruled the objections. Appellant admitted calling Cindy R. “mother.” Appellant said it was not a mistake or slip of the tongue. He frequently referred to her as either “mother” or “meja.”
B. Standard of Review
The abuse of discretion standard applies to rulings on the admissibility of evidence by the trial court. Under an abuse of discretion standard, a trial court’s ruling will not be disturbed on appeal, and reversal of judgment is not required, unless the trial court exercised its discretion in an arbitrary or capricious manner that resulted in a manifest miscarriage of justice. (People v. Guerra (2006) 37 Cal.4th 1067, 1113; and see Evid. Code, § 353.) “The decision of a trial court to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ [Citation.]” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.)
C. Admission of Testimony Not Prejudicial Error
Because Officer Payne was called upon to give translational or interpretive meaning to Spanish words that the jury would likely not be familiar with, it appears she testified as an expert. Regarding expert testimony, Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶ ] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact….” Thus, expert testimony is properly admitted if it would assist the jury, i.e., by adding to the jury’s common fund of information. (People v. Farnam (2002) 28 Cal.4th 107, 163.)
As to her qualifications to express an opinion on the meaning of Spanish words, Officer Payne testified that she was fluent in Spanish, was raised in Mexico and attended school there until the fourth grade, had four years of formal Spanish classes in high school, and had specialized classes regarding Hispanic gangs. Defense counsel stated he was not challenging the officer’s fluency in Spanish or her translation of the words; he was only objecting to any opinion as to what the words mean generally in the Hispanic culture. In light of Officer Payne’s experience and her unchallenged fluency and translation ability in the Spanish language, the trial court could reasonably find, as it implicitly did, that she was qualified to interpret the meaning of the words “mama” and “meja.” On the record before us, we are unable to conclude that Officer Payne “clearly lack[ed] qualification” to indicate an opinion as to the meaning of the Spanish words in question. (See People v. Farnam, supra, 28 Cal.4th at p. 162 [error regarding qualification of expert will be found only if the evidence shows that the witness “‘“‘clearly lacks qualification as an expert’”’”].)
Such testimony, to be relevant, must assist the jury in its role as the trier of fact. (Evid. Code, § 801, subd. (a).) At the time Officer Payne’s testimony was offered regarding the Spanish words “mama” and “meja,” the trial court noted there were prior occasions during trial in which these words were used and it determined that such information would assist the jury by providing a clearer understanding of the words’ meanings. Although it is unclear what prior testimony the trial court was referring to, appellant has failed to affirmatively demonstrate that the trial court erred in this assessment. In any event, Officer Payne’s testimony regarding the Spanish language meaning of the words “mother,” “mama” and “meja” was clearly of assistance once the jury subsequently heard appellant’s own admission that he would sometimes call Cindy R. “mother.” Thus, although the testimony may have been prematurely introduced if it was solely for the purpose of addressing the salutation in appellant’s telephone call to Cindy R., that error (if any) was primarily one of timing, and in looking to the entire record before us, including appellant’s admission of how he referred to Cindy R., we reject appellant’s contention that the testimony was irrelevant. Ultimately, it was plainly relevant. And although the foundation for the testimony was supplied later, it clearly existed, and thus any error in this regard was harmless.
“Relevant evidence means evidence, including evidence relevant to the credibility of a witness … having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
While appellant admits that provision of a translation to assist the court or jury is not in itself improper (See, e.g., Correa v. Superior Court (2002) 27 Cal.4th 444, 453-463), he argues it was prejudicial error to allow Officer Payne to testify as to common or generally appropriate word usage in the culture, because the officer had no qualifications to offer such opinions. Appellant cites the case of People v. Champion (1995) 9 Cal.4th 879 for the purpose of highlighting that an expert cannot offer an opinion beyond the scope of his or her qualifications. In Champion, two defendants conversed while being transported to jail. The tape recorded conversation included words commonly used in gang parlance that would not be understood by the jury, and the trial court allowed a deputy sheriff to explain and interpret the meaning of the particular words used by the defendants. (Id. at pp. 924-925.) The defendants claimed on appeal that the trial court erred because the testimony went beyond the scope of the deputy’s expertise. The Supreme Court disagreed, explaining as follows: “Because Deputy Williams had spent a number of years investigating and associating with juvenile gangs, the trial court could reasonably conclude he was sufficiently familiar with gang terminology to accurately interpret the words used by defendants. The use of an expert for this purpose is not uncommon.” (Id. at p. 924.) Appellant argues that here, unlike the deputy in Champion, there was no adequate showing of expertise to allow Officer Payne to testify as to cultural meaning and word usage.
We find it unnecessary to resolve the question of whether Officer Payne offered opinions that went beyond the extent of her Spanish language qualifications. Even assuming it was error for the trial court to allow her to testify as to common usage or appropriate usage of the particular words, that error was harmless for a number of reasons. The jury heard testimony which clearly indicated that Officer Payne was speaking from a perspective of her own family experience and had no formal training or scholarship regarding the linguistics or culture of the Mexican people or of Spanish-speaking people generally. Moreover, the jury was properly instructed pursuant to CALCRIM Nos. 332 and 333 regarding opinion testimony, and thus the jury presumably understood that it must consider the expert’s particular knowledge, skill, experience, training and education, and also whether the opinion was unreasonable or unsupported. Thus, the jury would be unlikely to attach any undue weight to Officer Payne’s remarks.
More importantly, given the detailed and extensive testimony by Cindy R. of the several incidents of molestation by appellant, it is not reasonably probable that appellant would have obtained a more favorable outcome if Officer Payne’s testimony as to word usage had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) Of course, in addition to the victim’s testimony, Cynthia A. testified of appellant’s unusual favoritism toward Cindy R. and of the way Cindy R. was constantly in appellant’s lap to an extent that seemed abnormal. Moreover, Cynthia A. testified that after appellant was in custody, he called and told her to tell Cindy R. to say the charges were all made up, and he offered to Cynthia A. property or whatever she wanted. For all of these reasons, we readily conclude from the record before us that the admission of Officer Payne’s disputed testimony was not prejudicial error.
D. Ineffective Assistance of Counsel Not Established
Also unavailing is appellant’s contention that he had ineffective assistance of counsel. “‘“[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness ... under prevailing professional norms.’ [Citation.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”’ [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 430.) If there was no prejudice, the claim of ineffective assistance of counsel fails and it is unnecessary to determine whether counsel’s action was deficient. (Id. at pp. 430-431.)
Here, appellant failed to establish either of the two requirements. As to the first prong, appellant has not demonstrated deficient representation by his attorney. Defense counsel acted with reasonable diligence in claiming surprise, objecting, moving to strike “cultural” testimony, moving for a continuance and moving for mistrial. On cross-examination, defense counsel strenuously attempted to discredit Officer Payne’s knowledge of Spanish culture and linguistics. Although it is possible that defense counsel might have done more, such as obtaining a cultural or language expert, we cannot conclude that a failure to do so demonstrates a deficiency in defense counsel’s advocacy of appellant. Additionally, there may have been sound tactical reasons not to obtain such an expert, including an election to avoid placing further attention or emphasis on the fact that appellant called Cindy R. “mother,” even assuming an expert could be found whose opinion differed to some degree from Officer Payne. (See People v. Jones (2003) 29 Cal.4th 1229, 1254 [if rational basis for a tactical decision, ineffective assistance of counsel will not be found].) As to the second prong, for the reasons previously discussed herein, there was no prejudice caused by defense counsel’s representation of appellant. We conclude that appellant’s claim of ineffective assistance of counsel has not been established.
II. Trial Court Properly Imposed the Upper Term
Appellant contends that the trial court’s imposition of the upper term of 16 years was improper in light of Cunningham, supra, 549 U.S. __ [127 S.Ct. 856]. We disagree.
In Cunningham, the United States Supreme Court held that California’s determinate sentencing law violated the Sixth Amendment right to a jury trial to the extent that it authorized a trial court to impose an upper term sentence based on facts found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at pp. __ [127 S.Ct. at pp. 860, 870].) The Cunningham decision, however, continued to recognize the principle expressed in Almendarez-Torres v. United States (1998) 523 U.S. 224, 246, that the fact of a prior conviction need not be submitted to a jury. (See Cunningham, supra, at pp. __ [127 S.Ct. at pp. 860, 864, 868].)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court revisited these sentencing issues in light of Cunningham. In Black II, it was 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 [v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, at p. 812.) Thus, “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.” (Black II, supra, at p. 813.) In summary, “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.” (Black II, supra, at p. 816.)
As noted in Black II, “under the line of high court decisions beginning with Apprendi … the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ [citation], that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone [citation].” (Black II, supra, 41 Cal.4th at p. 812.) Apprendi also examined the right to jury trial in criminal cases as it existed at common law, and observed that “nothing in this history suggests that it is impermissible for judges to exercise discretion -- taking into consideration various factors relating both to offense and offender -- in imposing a judgment within the range prescribed by statute.” (Apprendi, supra, 530 U.S. at p. 481.)
The United States Supreme Court has consistently affirmed that the right to a jury trial does not apply to the fact of a prior conviction. (See Cunningham, supra, 549 U.S. at pp. __ [127 S.Ct. at pp. 864, 868]; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States, supra, 523 U.S. at p. 243.) “[R]ecidivism … is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” (Almendarez-Torres, supra, at p. 243.) As indicated in Black II, the prior conviction exception is not read in a narrow sense, but extends to other recidivism-related factors that may be determined by examining the records of the prior convictions. (Black II, supra, 41 Cal.4th at p. 819; see also People v. McGee (2006) 38 Cal.4th 682, 703-706 [court may determine that prior conviction constituted a serious felony]; People v. Yim (2007) 152 Cal.App.4th 366, 371 [court may determine unsatisfactory performance on parole or probation]; People v. Thomas (2001) 91 Cal.App.4th 212, 220-223 [court may determine defendant served prior prison term].)
In the present case, the trial court sentenced appellant to the upper term based on four factors in aggravation, including that “[appellant] was on felony probation or parole … when the crime was committed,” and appellant’s “prior performance on felony probation was unsatisfactory.” (See Cal. Rules of Court, rule 4.421.) Since these were recidivism-related factors that could be determined by reference to court records pertaining to appellant’s prior convictions, sentences, probations and paroles, appellant was not entitled to a jury trial thereon. (People v. Yim, supra, 152 Cal.App.4th at p. 371.) Because at least one aggravating circumstance was properly established by the court, appellant was eligible to be sentenced to the upper term. Accordingly, imposition of the upper term did not violate appellant’s right to trial by jury.
The other two factors in aggravation expressly relied on by the trial court were that the crime involved a threat of great bodily harm to both victim and family, and appellant violated a position of trust. Defense counsel conceded that the latter aggravating factor was present. No factors in mitigation were found. The trial court read and considered the probation report which report included prior convictions under Health and Safety Code section 11370.1, subdivision (a), Penal Code section 273.5, subdivision (a), Penal Code section 245, subdivision (a), and violation of probation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Hill, J.