Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10784
CANTIL-SAKAUYE, J.
During the summer of 2005, Olushola Shekoni dated and gave money to Gale Buffington. On August 11, 2005, Buffington was with Shekoni at his apartment when defendant Nathan Anthony Dorris and Deandre Scott entered and robbed Shekoni at gunpoint. The ensuing investigation revealed that defendant was Buffington’s husband. Defendant was arrested in Arizona six months later and returned to California.
A jury convicted defendant of robbery in concert with others and burglary. It also found true the allegation that defendant personally used a firearm during the commission of the robbery. In bifurcated proceedings, the court found true the allegation that defendant had served a prior prison term. The court sentenced defendant to 20 years in prison: the upper term of nine years for robbery in count one, plus a consecutive term of 10 years for the gun use enhancement; the upper term of six years for burglary in count two, which was stayed pursuant to Penal Code section 654; and a consecutive term of one year for the prior prison term enhancement.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant argues that he is entitled to reversal because: (1) the court improperly excluded impeachment evidence against Shekoni; (2) defense counsel was ineffective in stipulating that the court reporter did not have to report the reading of jury instructions; and (3) the court erroneously denied a defense petition for juror identifying information for the purpose of investigating possible juror misconduct. Defendant also contends that the court violated his constitutional rights by sentencing him to the upper term in counts one and two. We reject defendant’s arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Olushola Shekoni, a native of Nigeria, lived in an apartment in Carmichael. He had worked in Sacramento for five years. Shekoni had a residency card but worried that his immigration status might be jeopardized if he were involved in criminal activity.
Shekoni met Gale Buffington about two months before the robbery. He stopped his car when he saw her standing in front of her parent’s home. They talked and exchanged phone numbers. Buffington called Shekoni the next day and they agreed to meet. Shekoni learned that Buffington had a daughter, but did not know that she was married. Buffington told Shekoni that she and the child’s father were separated.
Shekoni wanted Buffington to be his girlfriend and saw her two or three times before August 10, 2005. Shekoni gave Buffington money on two occasions. He then told her not to ask for money again. They had sexual relations, but Shekoni denied that he paid Buffington for sex.
Buffington called Shekoni on August 10, 2005 and asked him to pick her up and take her to her mother’s house the next day. She also asked him for money. Shekoni told her that he would not get paid until the following day.
Shekoni left work around 3:30 p.m. on August 11 and met Buffington at a Kentucky Fried Chicken restaurant. She was with another woman. Shekoni drove both women to his apartment instead of Buffington’s mother’s house. Shekoni and Buffington went into Shekoni’s bedroom while Buffington’s friend watched television in the living room.
Five or 10 minutes later, two men entered the bedroom. One man, later identified as defendant, put a gun against Shekoni’s forehead and told him to lie on the floor. The second man, later identified as Deandre Scott, ransacked the apartment. When defendant took Shekoni into the kitchen, Shekoni noticed that Buffington and her friend were gone. Defendant and Scott forced Shekoni to give them his wallet. They also took Shekoni’s bracelet, chain, keys and cell phone. Defendant went back into the bedroom to pick up Buffington’s shoes. Once defendant and Scott left the apartment, Shekoni discovered that the men had taken a laptop computer and two watches from the bedroom. He also observed that they had tampered with his desktop computer and home theater system. Shekoni talked to his neighbor Emric Ambrus and called 911.
Ambrus had observed activity at Shekoni’s apartment earlier in the day. During the morning he saw two African-American men knock loudly on Shekoni’s door, leave, come back an hour later, knock louder, and leave a second time. Later, around 2:00 or 2:30 p.m., Ambrus was driving back to his apartment after taking his wife to work. He saw two African-American women run from the direction of the apartments toward a light colored car. About two minutes later, the men Andrus had seen in the morning came from the direction of his apartment and ran toward the light colored car. One man was carrying a large plastic garbage bag which was about half full. The other man was carrying a blue bag on his shoulder. The blue bag appeared to be heavy because the man put it down and picked it up again while he was running. Ambrus watched the two men and two women speed away from the scene in the light colored car.
Sacramento Sheriff’s Deputies Kevin Lawrence and Wayne Aday responded to the 911 call. Shekoni told sheriff’s deputies what happened and gave them a description of the suspects. Deputy Aday interviewed Ambrus. Shekoni also talked with Detective Paul Biondi who was assigned to the case a week later. Among other things, Shekoni did not tell the deputies about the woman who accompanied Buffington to his apartment and did not mention that defendant retrieved Buffington’s shoes from the bedroom before he left.
Shekoni tried to telephone Buffington a day or so after the robbery, but her cell phone had been disconnected. He also went to Buffington’s mother’s house, but was not allowed inside.
Once Detective Biondi linked Buffington with defendant, he assembled a photo lineup. In November 2005, Biondi showed the photographs to Shekoni, and Shekoni immediately identified defendant as the man with the gun. Biondi obtained a warrant for defendant’s arrest.
DISCUSSION
I.
Exclusion of Impeachment Evidence
Before trial, the prosecutor asked the court to exclude any reference to Shekoni’s arrest for the misdemeanor violation of section 148 -- resisting, delaying or obstructing a peace officer. Defense counsel objected, arguing that although it appeared charges were never filed as a result of the arrest, Shekoni’s conduct demonstrated moral turpitude which could be used to impeach him. The court excluded the evidence.
Section 148, subdivision (a)(1) provides: “Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
On appeal defendant maintains Shekoni’s conduct involved moral turpitude because it “posed an apparent risk of harm, not only to the officer . . . but also to Mr. Shekoni or innocent bystanders . . . .” Thus, defendant argues that the court erred excluding the evidence of Shekoni’s arrest. He also maintains that the court’s evidentiary ruling violated his constitutional rights to present an effective defense, to confront and cross-examine witnesses, and to due process of law. There is no merit in these arguments.
Courts have long placed limitations on the type of evidence that can be used to discredit a witness. “A witness’s past misdeeds may logically suggest an untrustworthy character, but jurisdictions have restricted such evidence, even if relevant to honesty, on policy grounds. The concern has been that without such limitations, trials would flounder on collateral issues, witnesses would be deterred by unfair surprise or fear of public humiliation, and testifying criminal defendants would incur the danger of conviction for past, not present, misconduct. [Citations.]” (People v. Wheeler (1992) 4 Cal.4th 284, 290 (Wheeler).) “‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]’” (People v. Babbitt (1988) 45 Cal.3d 660, 682-683 (Babbitt), quoting People v. Hall (1986) 41 Cal.3d 826, 834 [rejecting contention that defendant’s constitutional right to present a defense precludes any application of Evidence Code section 352].)
Wheeler addressed admissibility of misdemeanor convictions as impeachment evidence in the post-Proposition 8 world. In that case, the Supreme Court held that “if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as ‘relevant’ evidence under section 28(d).” (Wheeler, supra, 4 Cal.4th at pp. 287-288, 295, italics added.) The Wheeler court emphasized that “the admissibility of any past misconduct for impeachment [was] limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.” (Id. at p. 296.)
Proposition 8, known as the “Truth-in-Evidence” amendment to the California Constitution, declares that: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. . . .” (Cal. Const., art. I, § 28, subd. (d), italics added.) (Section 28(d).)
Case authority provides no clear and comprehensive definition of “moral turpitude” and its analysis proceeds on a statute-by-statute basis. (People v. Williams (1999) 72 Cal.App.4th 1460, 1463, fn. 6 (Williams).) One court observed that People v. Castro (1985) 38 Cal.3d 301 (Castro) states that “‘“Moral turpitude” means a general “‘readiness to do evil’” [citation] . . . . Castro makes no attempt to list or define those felonies which involve moral turpitude, but it makes clear that moral turpitude does not depend on dishonesty being an element of the felony. . . .’” (People v. Forster (1994) 29 Cal.App.4th 1746, 1756-1757.)
Defendant cites Williams in support of his argument that violation of section 148 is a crime of moral turpitude. Williams considered whether the trial court properly admitted for impeachment purposes evidence of the defendant’s prior conviction of a different offense -- resisting an executive officer by means of force or violence in violation of section 69. The court explained that moral turpitude “includes ‘conduct involving violence, menace, or threat.’ [Citations.]” (Williams, supra, 72 Cal.App.4th at p. 1464.) It reasoned that the court correctly found that section 69 was a crime of moral turpitude because its violation “always requires force, menace or threats directed at an executive officer. [Citation.]” (Williams, supra, at p. 1465, italics added.) The defendant in Williams had been convicted of a felony violation of section 69. (Williams, supra, at p. 1462.) Here, however, Shekoni was arrested for violating section 148, subdivision (a)(1), a misdemeanor.
Section 69 reads: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”
“[A]dditional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor--or any other conduct not amounting to a felony--is a less forceful indicator of immoral character or dishonesty than is a felony.” (Wheeler, supra, 4 Cal.4th at p. 296.) Where misdemeanors are involved, “courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297.) We review the court’s exercise of discretion under Evidence Code section 352 for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371; see Wheeler, supra, at p. 297.)
Here, defense counsel quoted the police report filed in connection with Shekoni’s arrest: “Mr. Shekoni was directed to remain in the vehicle while the officer completed the computer check. Mr. Shekoni exited the vehicle. The officer asked him what he needed, Quote, I told him to stay in his car, please. He kept advancing towards our car. I told him . . . he needed to wait in his car. . . . He argued with me, and I told him it was a misdemeanor for him not to comply and he would go to jail. [¶] I asked him if he was aware of 148 and repeated the order to get back to his car. He continued his slow advance towards me, had his arms at his sides. He was argumentative, the officer writes. I believe he was a threat to my safety and might be advancing on me to get close enough to attack. At that point the officer withdrew [sic] his taser after advising Mr. Shekoni to get back into the car, he would strike him with the taser.” Defense counsel argued that “this is exactly what was covered in People versus Williams.”
The court disagreed with defense counsel’s interpretation of the facts, and stated: “Here’s what I think about this: I think it is very close, and I think reasonable people could differ. I think you could argue this either way, and 69 does require either violence or a threat of violence. The question would be, and I think it is my discretion, the question would be whether or not this conduct constitutes such a threat of violence that it really involves what Castro used to call a readiness to do evil.
“What is clear to me and what is so frustrating after reading many of these reports, there is a readiness to do stupid. Advancing on an officer after he has told you repeatedly to stay in your car is beyond my comprehension, stupid. And the fact that this officer felt for his own safety and for reasons of traffic that he needed to draw his taser and still not get complete compliance, apparently there is still more arguing after that, these situations, I cannot comprehend them myself.
“I do not know what the ability of Mr. Shekoni to understand or appreciate what this officer is doing is, that is not in the record. We haven’t heard from Mr. Shekoni yet.
“The question would be in my mind whether or not the officer, who did everything correctly and appropriately in giving orders and doing what he needed to escalating the level of potential resistance as this person approached him. The question is does this really constitute . . . in Castro’s words, a readiness to do evil?
“It is incredibly stupid, it is incredibly defiant in a certain sense, but I’m not sure it really meets a readiness to do evil standard. It’s close. I agree it’s close, and I think it is a fine line between one more step and this would have gone from a 148 to a 69.
“But I do think it is my discretion, and in this case, given the totality of the circumstances, I don’t -- I cannot conclude that this person approaching the officer, even though the officer has to take the step of actually drawing his taser, appropriately feeling he may be threatened, putting himself, that is, himself or somebody else potentially is in jeopardy, there is no actual violence.
“And the threat of violence, although always in the officer’s mind has to be aware of that. Whether there was ever actually a real threat of violence, of course, is debatable, and I think that’s where the rub is.
“So, I think for all those reasons, I would be inclined to say that this conduct, although close, cannot be used by the defense for impeachment. It’s close, but I don’t believe it is quite there. It’s stupid. So . . . I will deny your motion to use this as impeachment.”
This record demonstrates that the court carefully considered the facts and made reasonable inferences from those facts, focusing from the outset on whether Shekoni’s conduct involved violence or a threat of violence. Based on the court’s analysis and ruling, we conclude that the court did not abuse its discretion in excluding evidence of Shekoni’s arrest. Thus, there was no violation of defendant’s constitutional rights. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674, 683]; Babbitt, supra, 45 Cal.3d at pp. 682-683.)
II.
Defense Counsel’s Instruction Stipulation Did Not Constitute Ineffective Assistance of Counsel
Defendant argues that defense counsel was ineffective and denied him due process when she stipulated that, “the court reporter need not report the reading of the jury instructions, provided a copy of the instructions read to the jury is made a permanent part of the court file.” Defendant also contends he was denied an adequate record for appellate review because there is no written stipulation in the clerk’s transcript, no record of the stipulation in the reporter’s transcript, and no indication in the clerk’s minutes or reporter’s transcript that a set of written jury instructions was sent to the jury room. We note that the stipulation is in the clerk’s minutes and the instructions are included in the record and provide an adequate basis for review of the correctness of the instructions. On appeal defendant maintains that, “it is not known whether the Court deviated from the language of any of the written instructions.” We reject defendant’s arguments on several grounds.
First, we do know that the court correctly read the instructions because defense counsel agreed that the court had “appropriately read 200 through 3515.” There is no basis in the record for second-guessing defense counsel’s assessment of what occurred in the courtroom.
Second, defendant forfeited any claim of error by agreeing that the court read the jury instructions correctly. (People v. Rogers (2006) 39 Cal.4th 826, 859.)
Third, defendant cites no case to support his claim that failure to prepare a reporter’s transcript of the oral reading of jury instructions violates due process where, as here, counsel agreed that the instructions were read correctly, written instructions are in the record, and nothing supports defendant’s suggestion on appeal that the written instructions were not provided to the jury.
Lastly, defendant fails to explain how he was prejudiced by the stipulation or denied adequate appellate review, given this record and the written instructions in the record. Defendant must show prejudice to prevail on a claim of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) This was a relatively straightforward case. The defense theory was that Shekoni was a “totally unbelievable” witness who made up the story that he was robbed because “Buffington was not returning his affections.” Credibility was the main issue in the case. The jury gave no indication it was confused by the court’s instruction on the applicable law. The only questions raised by the jury during deliberations involved a request for the police report, which the court denied, and requests that the reporter read back testimony by Shekoni and Ambrus, which the court granted. Defendant has failed to show there was either prejudice or a reasonable probability that the result would have been different but for the claimed unprofessional error in entering into the stipulation. (Strickland v. Washington, supra, at p. 694 [80 L.Ed.2d at p. 698]; People v. Ledesma, supra, at pp. 217-218.)
III.
Denial of Request to Disclose Juror Information
Three days before sentencing, defense counsel filed a request for the jurors’ addresses and telephone numbers in order to investigate possible juror misconduct. Defense counsel filed a declaration in support of her request which read: “I am informed and believe that juror misconduct occurred in this case, in that one juror was overheard saying to another that a verdict was rendered because it was easier to agree than to remain in the room with the others and continue deliberations.” The court denied the request on grounds defense counsel’s declaration was insufficient to establish good cause and, in any event, the alleged statement involved a single juror’s mental processes which were inadmissible to prove misconduct. We agree and reject defendant’s claim that the court abused its discretion in denying access to juror information or violated his right to due process.
Code of Civil Procedure section 237, subdivision (a)(2) directs the trial court to seal personal juror identifying information, consisting of names, addresses, and telephone numbers, after recording the verdict in a criminal case. “[A] defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.” (Code Civ. Proc., § 206, subd. (g).) Code of Civil Procedure section 237, subdivision (b) sets forth the standard for release of personal juror identifying information, as follows: “Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.” (Italics added.)
Here, defense counsel supported her request for disclosure of the jurors’ addresses and telephone numbers with a declaration on information and belief that consisted of double hearsay. “[A]n affidavit which is to be used as evidence must be positive, direct and not based upon hearsay. Affidavits made upon information and belief as to the facts purporting to be stated therein are hearsay and must be disregarded. [Citations.]” (Gutierrez v. Superior Court (1966) 243 Cal.App.2d 710, 725; see People v. Avila (2006) 38 Cal.4th 491, 605 (Avila); and Baustert v. Superior Court (2005) 129 Cal.App.4th 1269, 1275, fn. 5.) Defense counsel’s declaration contained inadmissible hearsay and was insufficient proof of good cause.
Even if the declaration provided competent evidence of what was allegedly stated by one of the trial jurors, there is a second and more compelling reason for denying the defense request for disclosure of personal identifying information. As the trial court explained, Evidence Code section 1150, subdivision (a) bars admission of evidence of the jurors’ mental processes on the question of juror misconduct. “The statute . . . makes a ‘distinction between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . .’ [Citation.] ‘This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent.’ [Citations.]” (People v. Cox (1991) 53 Cal.3d 618, 694.) We review denial of a defendant’s post-verdict efforts to obtain release of juror identification information for the purpose of investigating juror misconduct for abuse of discretion. (Avila, supra, 38 Cal.4th at p. 604; Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1097-1098.) Because defense counsel’s declaration was legally inadequate and because Evidence Code section 1150 barred further inquiry by the defense into the juror’s reasons for voting the way he or she did, there was no abuse of discretion in this case.
Evidence Code section 1150, subdivision (a) provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Italics added.)
IV.
Upper Term Sentences
Citing Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), defendant argues that the court violated his Sixth and Fourteenth Amendment rights by sentencing him to the upper term in counts one and two based on aggravating facts not found by the jury. Because at least one of the aggravating factors came within a well-recognized exception to Cunningham, we conclude there was no error.
The United States Supreme Court has consistently held that the Federal Constitution’s guarantee of a jury trial invalidates any sentencing scheme that allows a judge to impose a sentence greater than the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864]; Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413]; and Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455], italics added; see also, People v. Black (2007) 41 Cal.4th 799, 813-814 (Black II).) The Apprendi court derived the prior conviction exception from Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350] (Almendarez-Torres). (Apprendi, supra, 530 U.S. at pp. 488-490 [147 L.Ed.2d at pp. 453-454].) Although the United States Supreme Court has questioned the holding of Almendarez-Torres (see Apprendi, supra, at p. 489 [147 L.Ed.2d at p. 453]; and Shepard v. United States (2005) 544 U.S. 13, 27 [161 L.Ed.2d 205, 219] (conc. opn. of Thomas, J.)), the court has not elected to overrule the case. (See Rangel-Reyes v. United States (2006) ___ U.S. ___ [165 L.Ed.2d 910] [denying petition for writ of certiorari to reconsider Almendarez-Torres].) Thus, we are bound by the prior conviction exception. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Under California law, a single aggravating circumstance renders a defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728, distinguished by People v. Lucero (2000) 23 Cal.4th 692, 714.) Therefore, if one aggravating circumstance has been established in accordance with constitutional requirements, imposition of the upper term does not violate a defendant’s Sixth Amendment right to jury trial. (Black II, supra, at pp. 813, 820.)
In this case, the court relied on facts relating to the crime and facts relating to the defendant -- specifically, his criminal history -- in imposing the upper term in counts one and two. (Cal. Rules of Court, rule 4.421(a) & (b).) As to the criminal history, the court stated, “Unfortunately, as I read his criminal history for over a decade, a decade, the defendant’s life has been basically breaking into people’s homes, selling drugs, and possessing weapons. [¶] He has an impressive criminal history to say the least.” After citing California Rules of Court, rule 4.421(b)(2) [defendant’s prior convictions as an adult are numerous and of increasing seriousness], (b)(4) [defendant was on parole at the time this crime was committed] and (b)(5) [defendant’s prior performance on probation was unsatisfactory], the court continued: “I do find therefore, that the circumstances in aggravation outweigh any circumstances in mitigation, and that justifies an upper term sentencing for [defendant]. [¶] As I said, he has been involved in crime after crime, basically solidly from 1993 to the present, and those crimes have involved residential burglaries, drug sales, and weapons.”
Defendant does not challenge the sufficiency of the evidence to support these findings. We therefore conclude that at least one circumstance in aggravation, the fact that defendant’s prior convictions are numerous and of increasing seriousness (Cal. Rules of Court, rule (4.421(b)(2)), comes within the prior conviction exception to Cunningham.
In his reply brief, defendant argues for the first time that retrospective application of People v. Sandoval (2007) 41 Cal.4th 825, violates the ex post facto clause of the United States Constitution. Because resolution of the sentencing issue turns on an established exception to the Apprendi/Blakely/ Cunningham rule, the ex post facto issue is not before us.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., BUTZ, J.