Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA067964, David S. Milton, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Steven E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellant Michael Antoine Elkins appeals from the judgment entered following his convictions by jury on count 1 – possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and count 2 – possession of ammunition by a person prohibited from possessing a firearm (Pen. Code, § 12316, subd. (b)(1)), with court findings that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for eight years four months. We modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 8:30 a.m. on November 15, 2006, Alhambra police officers and other law enforcement officials went to an Alhambra residence where appellant lived. The officers went there to conduct a parole check on appellant. No one appeared to be at home. A Cadillac was parked in the driveway of the residence.
The parties stipulated that appellant previously had been convicted of a felony.
Susan Georgino arrived and said she lived at the residence. Alhambra Police Sergeant Jennifer Wiese asked Georgino if she knew who owned the Cadillac. Georgino indicated it belonged to appellant. Appellant was Georgino’s friend. Wiese, who had been warned that Georgino had a gun in the house, asked about it. Georgino said she had gotten rid of it.
Police retrieved from the Cadillac a bag containing a gun case. A loaded.38-caliber pistol was inside the case. Georgino came to the Cadillac and police showed her the gun. Georgino said, “ ‘I can’t believe he took it. I thought he changed his ways.’ ” Georgino later accused the officers of taking the gun from the house and planting it in the Cadillac. The Cadillac was registered to Nielson Williams. The gun was registered to Ralph Unzicker, Georgino’s former husband. The gun had been in Georgino’s possession in the house for 25 years.
Williams testified that in October 2006, he sold the Cadillac to appellant. DMV documents corroborated his testimony. On November 20, 2006, appellant was arrested and provided a false name to the arresting deputy.
2. Defense Evidence.
In defense, Michael Unzicker (Michael), Georgino’s son, testified as follows. Michael and appellant were good friends. Michael bought the Cadillac from appellant, but did not remember when Michael bought it. Michael previously had testified that he bought it on November 5, 2006. Appellant and Michael signed a bill of sale written on notebook paper. Michael did not register the car in his name.
Michael asked his mother to put her gun in a safe place. He saw his mother put the gun under her bed. He did not feel that was safe, so he put it under the passenger seat of the Cadillac which he had bought from appellant.
Michael learned in December 2006 that appellant had been arrested, but Michael did not know appellant had been arrested concerning a gun. When Michael learned that appellant had been arrested for the gun, Michael told his attorney. The attorney indicated Michael should wait until appellant’s trial before Michael got involved.
3. Rebuttal and Surrebuttal Evidence.
In rebuttal, on January 29, 2008, an investigator for the public defender’s office spoke with Michael regarding the bill of sale. Michael said he had found the bill of sale, but did not recall the date of the transaction. The investigator told Michael to call the investigator when Michael had the bill of sale. Michael did not subsequently call the investigator. Michael told an officer that Michael never had touched the gun. In surrebuttal, Michael denied telling police that he did not touch the gun.
CONTENTIONS
Appellant claims (1) the trial court erroneously admitted evidence of prior acts of possession of a firearm by appellant, (2) the trial court erroneously admitted gang affiliation evidence, (3) Penal Code section 654 barred multiple punishment on counts 1 and 2, and (4) the trial court violated appellant’s right to a jury trial by imposing the upper term on count 1 and by imposing consecutive terms.
DISCUSSION
1. The Trial Court Did Not Err by Admitting Evidence of Prior Acts of Possession of a Firearm by Appellant, or Gang Affiliation Evidence.
a. Pertinent Facts.
Prior to trial, the prosecutor proffered evidence that in 1997 and 2004, appellant illegally possessed a firearm and, each time, admitted to police that he was a gang member. The prosecutor, in pleadings and during oral argument on the issue, urged the prior acts evidence was admissible to prove, inter alia, intent, modus operandi, and common plan.
Appellant objected, inter alia, that the prior acts evidence was irrelevant to prove intent because Penal Code section 12021, subdivision (a)(1) proscribed a general intent crime, the prior acts were remote, the evidence was inadmissible propensity evidence under Evidence Code section 1101, and the evidence was excludable under Evidence Code section 352.
Count 1 charged a violation of Penal Code section 12021, subdivision (a)(1), which provides, in relevant part, “Any person who has been convicted of a felony... who... receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.”
The trial court indicated the prior acts evidence was probative of appellant’s motive for possessing a firearm in the present case, namely, he thought he needed a firearm for protection. The court also indicated the evidence was relevant to appellant’s general intent in possessing a firearm. The court further indicated that the probative value of the proffered evidence outweighed its potential prejudicial impact. The court overruled appellant’s objection. The court later indicated that the prior acts evidence was relevant to prove appellant’s knowledge of the presence of the gun.
Appellant also asked the court to exclude, as irrelevant, evidence of appellant’s gang membership. The prosecutor indicated appellant admitted in connection with each of the prior acts that appellant was a gang member. As to the 1997 act, the prosecutor quoted a police report reflecting appellant’s admission that he was a gang member. The prosecutor argued the gang affiliation evidence was relevant to explain why appellant felt he needed a gun for protection. Appellant argued the evidence was more prejudicial than probative.
The court indicated the gang affiliation evidence would be admitted but the court would limit its use. The court noted the parties were disputing appellant’s possession of the Cadillac and knowledge that the gun was inside it. The court commented that the fact that, on two occasions, appellant had indicated he was a gang member was relevant to the issue of motive, i.e., that he possessed the gun in the present case for his protection. The court also commented that the relevance of the gang evidence outweighed any prejudicial impact.
During the trial, a Monterey Park police officer testified that on June 22, 2004, the officer saw appellant in public and in possession of a CD case containing a loaded.22-caliber revolver. Later, police questioned appellant about his tattoos. Appellant said the following. Appellant had belonged to the Queen Street Bloods gang since he was 13 years old. The gun belonged to the mother of appellant’s best friend. Her name was Susan and appellant took the gun from her house without permission. Appellant intended to use the gun only for protection. Based on the incident, appellant was charged with possession of a firearm by a felon. Shortly after the officer began testifying, the court indicated to the jury that the testimony was being presented for the limited purpose of permitting the jury to evaluate appellant’s intent and motive in the instant case.
Appellant’s parole agent later testified without further objection to the effect that appellant, as a condition of his parole, was prohibited from contacting or associating with the Blood gang or any other known gang members. The parole agent also testified, over appellant’s relevance and hearsay objections, that in October 2006, the agent learned information that caused him concern, namely, that appellant’s brother had been murdered in a gang-related incident. The agent was concerned that appellant might retaliate. The court overruled the hearsay objection on the ground the testimony was not being offered for its truth. The prosecutor argued the testimony was proffered on the issue of motive for possessing a gun, especially since, on previous occasions, appellant had said he had a gun for protection. Appellant also posed an Evidence Code section 352 objection to this evidence and the court overruled the objection.
A Los Angeles police officer testified at trial that on September 29, 2007, the officer conducted a traffic stop of a vehicle appellant was driving. The officer saw a gun protruding from under the driver’s seat. Appellant initially denied that the gun, a Tech-9, was his, but later admitted it was his and that he had bought it for protection. Shortly after the officer began testifying, the court indicated to the jury that the testimony was being presented for the limited purpose of permitting the jury to evaluate appellant’s intent, motive, and “common scheme or plan” for possessing the gun in the instant case. We will present additional facts where pertinent below.
b. Analysis.
Appellant presents related claims that the trial court erroneously admitted evidence of his prior acts of possession of a firearm, and gang affiliation evidence. We disagree. There is no dispute the trial court correctly instructed on the law pertaining to count 1. The trial court, using CALCRIM No. 2511, instructed the jury on the elements of count 1 as follows, in relevant part, “The defendant is charged in Count 1 with unlawfully possessing a firearm. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant received or possessed a firearm; [¶] 2. The defendant knew that he received or possessed the firearm; [¶] AND [¶] 3. The defendant had previously been convicted of a felony. [¶]... [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.”
“The elements of the offense proscribed by [Penal Code] section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm. [Citations.]... [¶] As with any crime or public offense, in order to prove a violation of section 12021, subdivision (a), the prosecution must prove, beyond a reasonable doubt, a union, or joint operation of act and intent. ([Pen. Code,] § 20.) No specific criminal intent is required for this crime; general intent to commit the proscribed act is sufficient to sustain a conviction. [Citations.] The act proscribed by [Penal Code] section 12022 [sic], subdivision (a) is possession of a firearm. Therefore, whether possession is actual or constructive, it must be intentional.
“Wrongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm. [Citation.] A person who commits a prohibited act ‘through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence’ has not committed a crime. ([Pen. Code,] § 26.) Thus, a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent.” (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Knowledge of the existence of the gun, plus physical possession thereof, may ordinarily demonstrate an intent to exercise dominion and control, but said knowledge and physical possession do not demonstrate such intent as a matter of law. (Id. at pp. 922-924.)
There is similarly no dispute that the trial court, using CALCRIM No. 2591, correctly instructed on the elements of the offense alleged in count 2. The pertinent language of CALCRIM No. 2591 is similar to that of CALCRIM No. 2511, except the former pertains to ammunition, not a firearm. Accordingly, many of the above discussed principles pertaining to count 1 apply to count 2. The comments below are, in the main, equally applicable to both counts.
Count 2 charged a violation of Penal Code section 12316, subdivision (b)(1), which provides, in relevant part, “No person prohibited from... possessing a firearm under Section 12021... of this code... shall... possess, or have under his or her custody or control, any ammunition....” We refer to this offense hereafter as possession of ammunition.
Evidence Code section 210, states, in pertinent part, that: “ ‘Relevant evidence’ means evidence... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 1101, provides, in relevant part: “(a) Except as provided in this section... evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime,... or other act when relevant to prove some fact (such as motive,... intent,... knowledge,... [or] absence of mistake or accident...) other than his or her disposition to commit such an act.”
Evidence Code section 352 states, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” A trial court enjoys broad discretion under Evidence Code section 352, in assessing whether probative value outweighs undue prejudice, confusion, or consumption of time. (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.) An appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including a ruling concerning relevance, Evidence Code section 1101, or Evidence Code section 352 issues. (People v. Waidla (2000) 22 Cal.4th 690, 717, 723-725; People v. Memro (1995) 11 Cal.4th 786, 864.)
In the present case, the People had to prove, inter alia, appellant’s (1) possession (dominion and control) over the gun at issue in this case and (2) intentional (general intent) possession. Any evidence of knowledge of the existence or presence of the gun was pertinent to the issue of whether any possession of the gun by appellant was intentional.
The trial court ruled the proffered evidence was relevant to appellant’s motive, general intent, and knowledge of the gun’s presence. Evidence of motive, i.e., that appellant bought the gun on the first occasion for protection and, on the second occasion, intended to use the gun for protection, had a tendency in reason to prove why appellant possessed the gun in the present case, namely, for protection.
During its final charge to the jury, the trial court, using CALCRIM No. 370, instructed on motive. The instruction stated, “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act....’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) “ ‘... “Intent includes those consequences which (a) represent the very purpose for which an act is done(regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire).” ’ [Citation.]” (People v. Colantuono (1994) 7 Cal.4th 206, 217.)
Appellant’s illegal intentional possession of a gun on two previous occasions had a tendency in reason to prove that he intended to possess a gun in the present case. That is, the prior intentional possessions had a tendency in reason to prove that appellant purposed to possess, and/or knew to a substantial certainty that he was possessing, a gun in the present case. Moreover, appellant’s knowledge of the presence of the gun in the prior two cases had a tendency in reason to prove he knew of the presence of the gun in the present case, an issue relevant to knowing possession in the present case. Accordingly, the proffered evidence was not propensity evidence.
As to the prior acts and Evidence Code section 352, appellant concedes the evidence of the prior acts was not more inflammatory than the facts of the present offenses. Neither the 1997 nor the 2004 possession was too remote in time (cf. Ewoldt, supra, 7 Cal.4th at p. 405), and usually any remoteness of evidence goes to weight, not admissibility. (People v. Archerd (1970) 3 Cal.3d 615, 639.) Moreover, the fact that, after 1997, but before the present incident, appellant, in 2004, again illegally possessed a firearm demonstrates he was not leading a legally blameless life since 1997, a pertinent factor when evaluating alleged remoteness. (Cf. People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Appellant concedes the evidence of the two possessions came from independent sources; the independence of the sources militates in favor of admission of the evidence. (Ewoldt, supra, 7 Cal.4th at p. 404.)
The fact that no evidence was presented that appellant had been convicted for the prior acts increased the risk that the jury would convict him on the counts in the present case to punish him for the prior acts. However, People v. Frazier (2001) 89 Cal.App.4th 30, facing a similar issue (and without indicating whether the defendant had been convicted of the prior offenses there at issue) observed, “A risk does exist a jury might punish the defendant for his uncharged crimes regardless of whether it considered him guilty of the charged offense.... This risk, however, is counterbalanced by instructions on reasonable doubt, the necessity of proof as to each of the elements of [the charged offense], and specifically that the jury ‘must not convict the defendant of any crime with which he is not charged.’ ” (Id. at p. 42.)
We note appellant concedes “the jury likely knew appellant had been punished for the behavior in light of his status as a felon.” Appellant also concedes that “having been offered the information that appellant had prior arrests for possession of a firearm, it did not take any speculation or discussion for the jury to know and understand that appellant’s prior arrests for possession of a firearm resulted in convictions which made him a felon.”
Here too, the court instructed the jury on reasonable doubt and on the elements of the counts. Moreover, the court instructed the jury during the final charge that they were to consider the prior acts only on a limited number of issues. We presume the jury followed the instructions. (Cf. People v. Sanchez (2001) 26 Cal.4th 834, 852.)
The introduction of the prior acts evidence did not involve undue consumption of time. Moreover, this is not a case in which the prior acts evidence was “cumulative regarding an issue that was not reasonably subject to dispute.” (Ewoldt, supra, 7 Cal.4th at p. 406.) Appellant argued to the jury that he neither possessed the gun at issue in the present case, nor knew it was in the Cadillac. Further, the court gave appropriate limiting instructions, both shortly after the challenged evidence was received, and later during the court’s final charge to the jury. We presume the jury followed the instructions.
During the final charge, the court, using CALCRIM No. 375, told the jury: “The People presented evidence of other behavior by the defendant that was not charged in this case, the gun arrest of 1977 [sic] and the gun arrest in 2004.... [¶]... [¶] If you decide that the defendant committed the charged [sic] acts, you may but are not required to consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to possess a gun in this case or the defendant had a motive to commit the offenses charged in this case, or the defendant had a plan or scheme to commit offenses charged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses. Do not consider this evidence for any other purpose; for example, determining the defendant’s credibility. [¶] Do not conclude from this evidence that the defendant had a bad character or is disposed to commit crime.” The court, using CALCRIM No. 303, also instructed the jury, “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”
As for the gang affiliation evidence, it was relevant to appellant’s motive for carrying a gun in the present case. “Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive....” (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) The trial court also correctly concluded the gang affiliation evidence was not excludable under Evidence Code section 352. (Cf. People v. Funes, supra, at pp. 1518-1519; People v. Burns (1987) 196 Cal.App.3d 1440, 1455-1456; People v. Plasencia (1985) 168 Cal.App.3d 546, 552; People v. Frausto (1982) 135 Cal.App.3d 129, 140.) The trial court did not err as to either count by admitting the prior acts evidence, or by admitting gang affiliation evidence. Nor did the application of the ordinary rules of evidence, as here, impermissibly infringe on appellant’s right to present a defense. (Cf. People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Finally, even if the trial court erred, it does not follow that the judgment must be reversed. The proffered evidence of appellant’s repeated firearm possessions was admissible to prove the act of possession in the present case and, for that purpose, was admissible as evidence of common design or plan (Ewoldt, supra, 7 Cal.4th at pp. 394, fn. 2, 402-403). The proffered evidence was also admissible to prove appellant’s knowledge (Evid. Code, § 1101, subd. (b)) that he possessed the gun in this case, and the absence of mistake or accident in the possession of the gun. The gang affiliation evidence was admissible on the issue of appellant’s intent (People v. Funes, supra, 23 Cal.App.4th at pp. 1518-1519), i.e., his intentional possession of the gun.
Appellant poses no challenge to the sufficiency of the evidence supporting his convictions on counts 1 and 2, and there was ample evidence supporting the convictions. The jury reasonably could have believed that much of the defense evidence was fabricated. Any trial court error in admitting in evidence appellant’s prior acts of possession of a firearm, or gang affiliation evidence, was not prejudicial as to count 1 or 2. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)
2. Penal Code Section 654 Barred Multiple Punishment.
At the sentencing hearing, the trial court sentenced appellant to prison for a total of eight years four months, consisting of the three-year upper term on count 1 (doubled to six years pursuant to the “Three Strikes” law) with a consecutive subordinate term of eight months (doubled to 16 months pursuant to the Three Strikes law) on count 2, plus a one-year Penal Code section 667.5, subdivision (b) enhancement.
Appellant claims Penal Code section 654 barred multiple punishment on counts 1 and 2. We agree. The evidence demonstrates appellant possessed the ammunition by possessing the firearm containing the ammunition. He illegally possessed the ammunition in order to possess illegally a firearm which would discharge the ammunition. There was no evidence that appellant illegally possessed the ammunition with a different criminal objective than his objective in possessing the firearm. “Where, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and [Penal Code] section 654 precludes multiple punishment.” (People v. Lopez (2004) 119 Cal.App.4th 132, 138.) Penal Code section 654 barred multiple punishment on counts 1 and 2.
3. Imposition of the Upper Term on Count 1 and Imposition of Consecutive Sentences, Did Not Violate Appellant’s Right to a Jury Trial.
At the April 2008 sentencing hearing, the trial court, as mentioned, imposed the upper term on count 1. The court imposed the upper term because appellant’s prior convictions as an adult and adjudications as a juvenile were numerous (see Cal. Rules of Court, rule 4.421(b)(2)), he had served two prior prison terms (see Cal. Rules of Court, rule 4.421(b)(3)), and his prior performance on probation or parole was unsatisfactory (see Cal. Rules of Court, rule 4.421(b)(5)). The court also imposed a consecutive subordinate term on count 2, but did not then state its reason(s) for imposing a consecutive term.
Except for appellant’s Sixth Amendment challenge, there is no dispute that the trial court properly relied upon these factors to impose the upper term.
Appellant claims imposition of the upper term violated his right to a jury trial. We disagree. “In Cunningham [v. California (2007)] 549 U.S. 270 [166 L.Ed.2d 856] [(Cunningham)], the Supreme Court applied Apprendi [v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi)] and Blakely [v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely)] to California’s then existing determinate sentencing law, which provided that ‘the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.’ (Former [Pen. Code,] § 1170, subd. (b).) The Supreme Court held that by ‘assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated “upper term” sentence,’ California’s determinate sentencing law ‘violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.’ (Cunningham, supra, at p. 274 [166 L.Ed.2d at p. 864], italics added, overruling People v. Black (2005) 35 Cal.4th 1238... (Black I) on this point.)
“The California Legislature quickly responded to the Cunningham decision. Senate Bill No. 40 (2007-2008 Reg. Sess.) (Senate Bill 40) amended section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. (Cunningham, supra, 549 U.S. at pp. 292-294 [166 L.Ed.2d at pp. 876-877]; see Stats. 2007, ch. 3, § 1.)” (People v. Wilson (2008) 164 Cal.App.4th 988, 991-992 (Wilson).)
Wilson continued, “Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: ‘When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....’ (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.)” (Wilson, supra, 164 Cal.App.4th at p. 992.)
Although the present offense occurred in 2006, Penal Code section 1170, was amended effective March 30, 2007, and the trial court sentenced appellant in 2008. The trial court stated its reason(s) for imposing the upper term for the present offense. The trial court’s sentencing of appellant in compliance with the requirements of amended Penal Code section 1170, subdivision (b), did not violate appellant’s federal constitutional rights under Apprendi, Blakely, or Cunningham.
Moreover, even if Cunningham applied to appellant’s sentencing, there was no error. “In Cunningham, the United States Supreme Court, applying principles established in its earlier decisions in [Apprendi and Blakely], concluded that California’s [determinate sentence law] does not comply with a defendant’s right to a jury trial. ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, 549 U.S. at [p. 281] [127 S.Ct. at pp. 863-864].)” (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).)
In People v. Black (2007) 41 Cal.4th 799 (Black), our Supreme Court stated: “[W]e agree with the Attorney General’s contention that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.)
The United States Supreme Court has recognized an exception to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. The right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Sandoval, supra, 41 Cal.4th at pp. 836-837.) There is no dispute that appellant suffered numerous prior convictions. This rendered him constitutionally eligible for the upper term. No Cunningham error occurred.
Appellant also claims that imposition of consecutive sentences on counts 1 and 2 violated his right to a jury trial. However, our Supreme Court has concluded that, “[a] defendant’s constitutional right to jury trial [is] not violated by the trial court’s imposition of consecutive sentences....” (Black, supra, 41 Cal.4th at p. 823.) Appellant concedes this court is bound by Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is modified by staying execution of sentence on appellant’s conviction for possession of ammunition (count 2), pending completion of his sentence on his conviction for possession of a firearm by a felon (count 1), such stay then to become permanent, and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.
We concur. CROSKEY, Acting P. J., ALDRICH, J.