Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Los Angeles County, No. BA320753. Drew E. Edwards, Judge.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Rickey Franklin appeals from the judgment entered upon his conviction by jury of possession of cocaine base (Health & Saf. Code, § 11350). The trial court found that he had previously been convicted of a felony within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) and had served two prior prison terms within the meaning of section 667.5, subdivision (b). It sentenced appellant to the upper term of three years, doubled as a second strike, plus one year for the prior prison term enhancement. Appellant contends that (1) the trial court erred in allowing the admission of evidence that he was arrested for spousal battery under the “open the door” theory, (2) the trial court violated his right to confront witnesses by precluding cross-examination of the prosecution’s expert witness on the expert’s past overweighing of drugs, (3) the trial court violated his right to present a defense by precluding a defense witness from testifying about police misconduct, and (4) imposition of the upper term sentence violated his Sixth Amendment right to a jury trial, as articulated in Apprendi and its progeny, as well as the prohibition against ex post facto laws. Appellant requests that we independently review the in camera Pitchess hearing.
All further statutory references are to the Penal Code unless otherwise indicated.
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We affirm.
FACTUAL BACKGROUND
The prosecution’s evidence
On April 5, 2007, at 6:50 p.m., Los Angeles Police Officers Leila Ryan, Jeffrey Alley and Gustavo Chacon were in uniform, in an unmarked car, patrolling in a high narcotics area, near 65th Street and Vermont Avenue, in Los Angeles. It was still light outside. Officer Chacon was driving, Officer Ryan was in the front, and Officer Alley was in the back.
The officers were proceeding south on Vermont when they saw appellant riding a bicycle in the same direction. Appellant’s left hand was clenched in a fist on top of the handlebar, but not actually gripping it. Officer Chacon yelled, “Hey buddy, what are you doing? What’s up,” and Officer Ryan called to appellant to stop. Appellant made eye contact with the officers, slowed his bicycle and cut across Vermont toward 65th Street, “weaving in and out of cars” in heavy traffic.
Officer Chacon drove to the next intersection and made a U-turn, as Officers Ryan and Alley kept appellant in view. As the police car approached appellant, he illegally rode his bicycle on the sidewalk. The officers caught up with him, and Officer Chacon again told him to stop. Appellant looked toward the officer, placed something in his mouth, and continued to ride east. When the officers were eight to 10 feet away, appellant spit a saran-wrapped object from his mouth and tossed a small baggie with his hand. According to Officer Chacon, both objects landed on the front yard of a day care center located next door to appellant’s residence.
Officer Alley testified that the item thrown by appellant landed on the sidewalk, and the item spit went into the yard.
Appellant made a left turn up a long driveway next to his residence, followed by the officers. He looked back at the officers and veered into a wall of the building, falling on top of his bicycle. Officer Alley was the first to reach him, and the officers handcuffed and detained him. According to Officer Ryan, no officer got on top of appellant, put a knee in his back, forced him to face the ground, or repeatedly yelled that he was a liar.
The police report stated that appellant dismounted his bicycle. It did not say that he fell.
Officers Ryan and Chacon searched for the items appellant discarded. Officer Chacon recovered them in the front yard of the day care center. Forensic testing disclosed that the baggie contained marijuana, and the saran-wrapped item spit from appellant’s mouth contained a usable quantity (.15 grams) of cocaine base. No soda can was recovered.
Two women asked what was happening. Officer Alley said that appellant was being arrested, and Officer Chacon said, “He’s going to jail for a while.”
The defense’s evidence
Appellant testified on his own behalf that, on April 5, 2007, he rode his bicycle to the store to buy a soda. As he returned, he saw his niece, Ronneka Franklin, with her newborn baby. According to Ronneka, appellant stopped and talked with her for a few minutes, still holding his soda. She testified that while they spoke, an unmarked police car drove by, but did not stop. The officers said nothing but proceeded to a light and then made a U-turn. Appellant rode his bicycle across Vermont, down 65th Street, still holding the soda can.
Appellant rode towards his home and did not hear sirens or anyone yelling at him. He did not place anything into his mouth, spit, or toss anything while he was riding. When he arrived home, he dismounted his bicycle and leaned it on the kickstand. Seconds later, the police arrived in the driveway. Officer Alley was the first officer to approach him, and placed appellant face-down on top of his bicycle, with Officer Alley’s left hand on his head and knee in his back. Appellant yelled his wife’s and mother’s names and was handcuffed by Officer Alley while on the ground.
Jada Watkins, appellant’s wife, heard him yell. She went outside and saw appellant on the ground, an officer’s knee in his back. When she asked what appellant had done, the officer said he ran from them. He said nothing about illegal narcotics.
Officer Chacon walked appellant to the car. Officer Alley came up to appellant and repeatedly called him a liar. Officer Chacon held up his hand as if telling Officer Alley to stop. Appellant was not told why he was handcuffed. The day care center had a gated yard, to which the owner’s sons, their friends and others had access.
DISCUSSION
I. Cross-examination regarding appellant’s spousal battery arrest.
On direct examination, when asked if he pled guilty to an offense in 1999, appellant stated: “I guess you could call it pleading guilty. I never—if I was partially or guilty of something, I would just go ahead and get the offer that they would offer me. I would take it and pay my debt and put it behind me.” He stated that paying his debt was important to him, “So I can go and continue my life when I come out of it. I’m not one to try to stand and fight against something that I know I’ll be defeated in. And, you know, I did it.” Appellant also testified that in 2003, although he believed he was innocent, he pled guilty to attempted robbery because his father was ill, and appellant needed to put the matter behind him so he could care for him. When asked why he was fighting the current charge, he said, “I’m fighting this because I’m innocent. I didn’t have any narcotics. I didn’t possess any narcotic. I didn’t spit or throw any narcotic. . . .”
On cross-examination, the prosecutor asked appellant about his direct testimony that he pled to certain charges because he wanted to take responsibility. Appellant testified, “I pled to the charges if I was guilty of something. This is my own philosophy, there was no need for me to fight it. If you just look through my record, you can see I have never ever took [sic] a case to trial. Because if I felt that I was wrong or partially wrong, I am going to suffer the consequences. So the deals that I made in every case, in every case I ever had it was a deal made. Because what would I look back on? I’d waste the state and the city’s money and I would be partially guilty. Maybe they couldn’t have proved it if I would have fought it, but in my heart I know I was wrong. So when they offered me something, if it was a feasible offer and I know I could bounce back and go on a different path from that, give me the deal. I’ll go up to prison, or wherever they send me, and I would do time, serve my debt, and that will give me a clear conscience as a person.” Appellant said that that happened on more than one occasion because he has had more than one brush with the law. He was asked if he plead on all of those brushes. Appellant responded that it “[d]epends on the circumstances.” The prosecutor then asked, “Would you say you’ve had quite a few brushes with the law that have not resulted in a plea or jury trial or a conviction?” (Italics added.)
Defense counsel asked for a mistrial because the question related to matters over appellant’s entire lifetime including arrests, dismissals and the like and suggested to the jury that appellant had “almost never ending, contacts with law enforcement.” She argued this made it impossible for appellant to get a fair trial. The prosecutor argued that because appellant testified that he took responsibility for all of his cases and had several brushes with the law, he “opened the door” to questioning regarding his contacts with the law, not merely “his convictions or pleas.”
The trial court denied the motion for mistrial on two grounds; there was no evidence appellant suffered any other convictions than the ones which the trial court permitted the prosecution to use for impeachment, and appellant’s testimony that “any time he is in trouble with the law that he takes responsibility for his own crime” opened the door to his prior contacts with the criminal justice system. In response to the defense request for clarification as to the scope of the prosecutor’s permissible questioning, the trial court expounded: “[W]hen Mr. Franklin made the statement that when he said that anytime he has any contacts with law enforcement that he simply pleads guilty, in my view he has opened the door for testimony to come in about all of his prior contacts with law enforcement.” The trial court then limited the contacts to those occurring since 1999.
When questioning resumed, the prosecutor asked if appellant had been convicted in 1999 of possession of a dangerous weapon and possession for sale of cocaine base, convicted in 2003 of attempted robbery, and arrested in 2004 for battery on a spouse. Appellant responded affirmatively to these questions.
On redirect examination, defense counsel established that, “The state elected to dismiss [the 2004 spousal battery claim] because there was no crime.” In this case, appellant chose to go to court, despite the risks of double or triple time, because he was innocent.
Appellant contends that the trial court erred in admitting evidence of his arrest for spousal battery. He argues that his testimony did not imply that he pled guilty every time he had contact with law enforcement. Even if his testimony so implied, it did not “open the door” to his arrest for spousal battery because that evidence was irrelevant. Furthermore, there is no “opening the door” doctrine for irrelevant evidence. We agree that the trial court erred in permitting evidence of appellant’s 2004 arrest for spousal battery but find the error to have been harmless.
Appellant testified that he pled to the 1999 drug charge and “pled to certain charges,” “if [he] was guilty of something.” He said he wanted to “take responsibility,” “serve [his] debt,” and suffer the consequences if he “was wrong or partially wrong.” Each of these comments suggests that appellant admitted charges when he believed he was guilty, not otherwise. Appellant was also attempting to bolster his credibility with the jury by implying that if he were guilty of the subject charges he would have admitted same and that he proceeded to trial here only because he was in fact not guilty. Nevertheless, we do not find anything in his comments to support the trial court’s conclusion that he admitted guilt every time he had contact with law enforcement. Therefore, inquiry regarding any contact he had had with law enforcement was not relevant to his direct testimony.
Evidence that appellant was arrested for spousal abuse was not relevant for any purpose. Other crimes evidence is generally inadmissible to prove the disposition to commit the charged offense. (Evid. Code, § 1101, subd. (a).) While it is admissible to prove specific issues in a case, such as intent, motivation and other issues (Evid. Code, § 1101, subd. (b)), appellant’s prior arrest for spousal abuse was not relevant to any issue in this drug case. It was also irrelevant and inadmissible for impeachment. (People v. Anderson (1978) 20 Cal.3d 647, 650; People v. Bryden (1998) 63 Cal.App.4th 159, 183.) An arrest without a conviction, does not necessarily bear on a witness’s credibility. It may signify nothing more than authorities accused the wrong person. The trial court erred in allowing this testimony.
We nonetheless find the admission of this evidence harmless, as there was no reasonable probability that the error affected the result. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence against appellant was strong, if not overwhelming. Three police officers testified consistently that they saw him throw a baggie of marijuana and spit saran-wrapped cocaine base onto the front lawn of the day care center. The discarded narcotics were almost immediately recovered from the location where the officers had seen them thrown and were later determined to contain contraband. Additionally, reference to appellant’s spousal battery arrest was brief and without elaboration. Amidst evidence of his convictions of attempted robbery, possession of a dangerous weapon and a 1999 drug conviction, closely related to the current charge, the spousal battery arrest evidence was likely to have made little impact. This is particularly true in light of appellant’s redirect testimony that the “state elected to dismiss [the spousal battery charge] because there was no crime.”
II. Limitation of cross-examination.
During trial, the prosecutor sought to exclude evidence under Evidence Code section 352 that her criminalist, Jeffrey Lowe, had overweighed 28 items in 27 different cases because of a “defect in his procedure.” Lowe was thereafter retrained. The prosecutor argued that the quantity of narcotics in this case was not in issue. Defense counsel argued that the evidence was relevant because “it is such a small quantity,” and she wanted to “qualify the expert regarding that.” The trial court concluded that the weight of the items was not disputed and did not relate “to whether or not [appellant was] guilty . . . .” It granted the motion pursuant to Evidence Code section 352.
Lowe then testified that he tested the solid off-white substance that appellant had spit from his mouth and determined that it was .15 grams of cocaine base and the other recovered item was marijuana. Defense counsel did not cross-examine him.
Appellant contends the trial court erred in precluding him from cross-examining Lowe regarding his overweighing, thereby depriving him of his right to confront and cross-examine the witnesses against him. We find this contention to be without merit.
Evidence Code section 352 provides that the trial court can exclude even probative 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.” We evaluate the trial court’s Evidence Code section 352 determination under the abuse of discretion standard. (People v. Greenberger (1997)58 Cal.App.4th 298, 352.) The trial court’s discretion is as “‘broad as necessary.’” (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) “‘[I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded.’” (Ibid.) “‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice.’” (Id. at p. 1533.) “‘[W]hen the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion.’” (Ibid.)
The trial court did not abuse its discretion in limiting appellant’s cross-examination of Lowe under Evidence Code section 352. The excluded testimony was of little relevance. The principal issue in this case was whether appellant possessed the drugs, not its quantity. There was no contention as to the weight of the cocaine base. Furthermore, Officer Alley had already testified based on his experience and visual observations that the cocaine base recovered was a usable quantity. While Lowe’s credibility, like any other witness, was in issue, his testimony was not at the core of the case. His past errors in weighing might have had some minimal, indirect bearing on his expertise and hence, credibility, but that impact was diminished because he had been retrained. Thus, the probative value of this evidence was substantially outweighed by the possible undue consumption of time and confusion of issues involved in the technical evidence of how drugs are weighed.
Under the Sixth Amendment to the United States Constitution, a defendant has the fundamental constitutional right to confront witnesses against him and cross-examine his accusers. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678; People v. Brock (1985) 38 Cal.3d 180, 188-189.) Nevertheless, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall, supra, at p. 679; People v. Ledesma (2006) 39 Cal.4th 641, 705; People v. Cornwell (2005) 37 Cal.4th 50, 95.) Only if the limitation placed on cross-examination produced “‘a significantly different impression of [the witnesses’] credibility,’” does the exercise of discretion violate the Sixth Amendment or the California Constitution. (People v. Frye (1998) 18 Cal.4th 894, 946.) Where the evidence is only nominally relevant to the subject matter of an expert’s testimony, confrontation rights are not violated by preventing such cross-examination. (People v. Sapp (2003) 31 Cal.4th 240, 290.)
Appellant’s right to confront witnesses was not infringed as the limitation placed on his cross-examination of Lowe was not unreasonable. He was not otherwise prevented from cross-examining Lowe on credibility issues or even on his method of calculating the weight of the narcotics in this case. Appellant chose not to cross-examine Lowe.
III. Preclusion of evidence about officers’ use of excessive force.
At the conclusion of the prosecution’s case-in-chief, defense counsel indicated she would call Pra-Shiea Garrett as a witness. Garrett would testify that she saw appellant arrive home on a bicycle, put his kickstand down and dismount. Appellant did not crash his bicycle into a wall. She heard him ask the officers what the problem was and one of the officers threw him on the ground and searched him. She saw one officer place his knee in appellant’s back, and appellant drop his soda can.
Defense counsel argued that the evidence of “roughing up” her client was relevant because it “would give the officers a reason to plant evidence” and would negatively impact the officers’ credibility by contradicting their testimony that appellant fell off his bicycle after crashing into the wall, suggesting that he was fleeing. The prosecutor argued that Garrett’s testimony was hearsay, irrelevant and more prejudicial than probative. It related to occurrences after the narcotics were discarded.
The trial court agreed with the prosecutor and did not permit Garrett to testify. But the trial court did permit Jada Watkins to testify that when she asked officers what appellant did, she was told that he was “simply running away from them,” not that he was involved “in some type of a drug arrest.”
At the conclusion of all of the evidence, defense counsel renewed her request to call Garrett on the police tactics on the ground that there had been much testimony as to the force used. The trial court again denied the request, finding it to be peripheral and that it would entail an undue consumption of time under Evidence Code section 352.
Appellant contends that the trial court erred in excluding relevant evidence. He argues that evidence of the officers’ use of excessive force established a motive for the officers to plant evidence, and evidence that he did not crash his bicycle into the wall impacted their credibility, as they testified contrariwise. Appellant further contends that exclusion of this evidence violated his constitutional right to present a defense. We disagree.
The excluded evidence was irrelevant and, if it had any minimal relevance, it was substantially outweighed by its prejudice. We review the trial court’s exclusion of evidence on relevance and Evidence Code section 352 grounds under the deferential abuse of discretion standard. (People v. Brown (2003) 31 Cal.4th 518, 577; People v. Greenberger, supra, 58 Cal.App.4th at p. 352.) “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) Relevant evidence is evidence “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.)
The crux issue in this matter was whether or not appellant possessed the illegal narcotics. By everyone’s testimony, he did not have the narcotics when he arrived at his residence. Thus, evidence of excessive force in apprehending appellant was not relevant. Moreover, it was cumulative, as Jada Watkins and appellant both testified to the officers’ use of force. Appellant’s claim that the use of force provided a motive for the officers to plant the drugs is simply too speculative to be relevant. (People v. Kraft (2000) 23 Cal.4th 978, 1035 [where testimony raises only speculative inferences, it is properly deemed inadmissible].) While the evidence that appellant dismounted his bicycle and did not crash into a wall contradicts the officers’ testimony, it is irrelevant as to the key issue in this case: whether appellant possessed the drugs.
We similarly reject defendant’s claim that the exclusion of the witnesses’ testimony deprived him of due process by precluding him from presenting a defense. “‘As a general matter, the “[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level. . . .’” (People v. Boyette (2002) 29 Cal.4th 381, 427-428.) Where a “trial court’s ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense,” the ruling does not constitute a violation of due process. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) The trial court did not preclude defendant from impeaching the officers’ credibility. The ruling simply precluded one remote, cumulative item of impeachment. The court allowed substantial impeachment, including, for example the testimony of Jada Watkins that when she asked the officers why appellant was being detained, she was only told because he had run, not for a drug violation, and the testimony of Ronneka Franklin that when the police drove by her and appellant on Vermont the officers said nothing.
Even if the trial court erred in excluding the challenged evidence, it is not reasonably likely that had it been admitted a different result would have ensued. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317 [adopting Watson harmless error standard where trial court ruling did not preclude a defense but merely rejected certain evidence concerning the defense].) As discussed in part II, ante, the evidence against appellant was strong. Moreover, Garrett’s testimony was largely cumulative, as there was already evidence before the jury that the officers used unnecessary force. It is idle speculation that use of force would have given the officers a motive to plant evidence. (People v. Kraft, supra, 23 Cal.4th at p. 1035.)
IV. Appellant’s upper term sentence did not violate his constitutional rights.
The jury found appellant guilty of the April 5, 2007 possession of cocaine. The trial court found that he had suffered a prior felony strike and two prior prison terms. On December 4, 2007, it sentenced him to the upper term of three years, doubled as a second strike, plus one year for the prior prison term enhancement. In aggravation, it found that appellant’s prior convictions were numerous and increasing in seriousness, he had poor performance on probation in the past and had served three separate prison terms. It found appellant’s age to be a factor in mitigation, but concluded that it did not outweigh the factors in aggravation.
Appellant contends that imposition of the upper term sentence deprived him of due process and his right to a jury determination beyond a reasonable doubt of all facts necessary to increase his sentence beyond the statutory maximum, as articulated in Apprendi, Blakely, and Cunningham. He argues that the trial court imposed the upper term based upon its finding of factors in aggravation that were never presented to the jury, contrary to the dictates of the United States Supreme Court in Cunningham which concluded that under California’s determinate sentencing law (DSL) the middle term is the statutory maximum sentence, and, hence, the jury must make those factual findings. He further argues that to the extent People v. Black (2007) 41 Cal.4th 799 (Black) permits the existence of a single aggravating factor established in accordance with the constitutional requirements to make the upper term the “statutory maximum,” it is incompatible with Apprendi and its progeny. Finally, appellant contends that application of Black’s “altered version” of the DSL violates due process and the ex post facto prohibition. These contentions are without merit.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
Cunningham v. California (2007) 549 U.S. 308 (Cunningham).
Appellant also argues that he has not forfeited these contentions by having failed to object on those grounds in the trial court. We do not decide this question, as respondent does not argue forfeiture, and we would consider the issue under our discretion to do so, in any event. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [“[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party”].)
A. Right to jury
In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) In Blakely, the court elaborated that “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” must be determined by a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 303.) In Cunningham, the high court made clear that “[i]n accord with Blakely . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S.__ [127 S.Ct. at p. 868].) California’s DSL and “the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts-whether related to the offense or the offender-beyond the elements of the charged offense.” (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 862].) Hence, California’s DSL is unconstitutional to the extent it authorizes the trial court to impose an upper term sentence based on facts that are found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p.__ [127 S.Ct. at p. 871].)
The California Legislature quickly responded to Cunningham. Senate Bill No. 40 (SB 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 p. ___, 127 S.Ct. at pp. 869-872; see Stats. 2007, ch. 3, § 1.) SB 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) prior to appellant committing the charged offense on April 5, 2007 and being sentenced for it on December 4, 2007.
At appellant’s sentencing, the trial court stated as its reasons for imposing the upper term that appellant’s prior convictions were numerous and increasing in seriousness, he had poor performance on probation in the past and served time in prison on three separate occasions. At the time of sentencing, amended section 1170, subdivision (b) was already in effect. It made the upper term the “statutory maximum” within the meaning of Cunningham by eliminating the middle term as the presumptive term. This meant that no additional factual finding was required to impose the upper term. This being the case, the trial court was permitted to consider any facts in the exercise of its discretion. Hence, the trial court’s sentencing of appellant in compliance with the requirements of amended section 1170, subdivision (b), did not violate defendant’s federal constitutional rights under Apprendi, Blakely, and Cunningham.
Even if Cunningham had applied to appellant’s sentencing, there would be no error. Black held that “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, supra, 41 Cal.4th at p. 816.) The United States Supreme Court has consistently stated that the right to a jury trial does not apply to the fact of a prior conviction. (Blakely, supra, 542 U.S. at p. 301; see also Black, supra, at p. 818.) This exception is not to be read too narrowly. (Black, supra, at p. 819.) The fact of a prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) It has also been concluded that this exception relates more broadly to the issue of “‘recidivism.’” (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222, cited with approval in People v. McGee (2006) 38 Cal.4th 682, 700-703.) The California Supreme Court recently held that it applied to failure to do well on probation or parole when established by a record of prior convictions. (People v. Towne (2008) 44 Cal.4th 63, 82.)We are bound by our Supreme Court’s decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Applying Black here, we conclude that appellant was not deprived of his constitutional right to a jury trial by imposition of the upper term sentence. It was based on at least one aggravating factor that satisfied the Sixth Amendment. (Black, supra, 41 Cal.4th at p. 813.) The trial court found as aggravating factors that appellant had numerous prior convictions, committed the charged offense while on parole and performed unsatisfactorily while on parole and probation. The adverse criminal history factor has been explicitly held by our Supreme Court to be within the prior conviction/recidivism exception to Apprendi and its progeny. (See Black, supra, at p. 818.) The factors of unsatisfactory performance on parole and probation and having committed the charged offense while on parole also come within the prior conviction/recidivism exception. Both may be ascertained simply by examining the records of prior convictions. (Id. at p. 819.)
B. Prohibition against ex post facto law
Appellant mounts an ex post facto challenge to Black’s “establishing a new, unexpected bifurcated sentencing scheme.” The ex post facto provision in the federal Constitution states that “‘No state shall . . . pass any . . . ex post facto law . . . .’ (U.S. Const., art. I, § 10, cl. 1.) A law violates the ex post facto clause only if it is retroactive—that is, if it applies to events occurring before its enactment—and if its application disadvantages the offender. A retroactive law does not violate the ex post facto clause if it ‘does not alter “substantial personal rights,” but merely changes “modes of procedure which do not affect matters of substance.”’” (People v. Sandoval (2007) 41 Cal.4th 825, 853 (Sandoval).) “[T]he question of whether a change in the sentencing process violates the ex post facto clause depends on the significance of its impact.” (Id. at p. 854.)
Appellant mounts no similar challenge to application of the amended section 1170.
Appellant committed his offense a week after adoption of amended section 1170 and was sentenced nine months later. Consequently, the new law was not applied to events occurring prior to its enactment and could be applied to appellant without violating the ex post facto prohibition.
Even if he was sentenced under Black, which decision was rendered in July 2007, after appellant committed the charged offense, the ex post facto prohibition presents no obstacle. An ex post facto law applies only to statutory enactments, not to judicial decisions. (Sandoval, supra, 41 Cal.4th at p. 855; Marks v. United States (1977) 430 U.S. 188, 191.) While limitations on ex post facto judicial decision making are also inherent in due process (Sandoval, supra, at p. 855; Rogers v. Tennessee (2001) 532 U.S. 451, 456), “the due process clause does not require the application of strict ex post facto principles in the context of judicial decision making.” (Sandoval, supra, at p. 855.) “Rather, judicial decisions are reviewed under ‘core due process concepts of notice, foreseeability, and, in particular, the right to fair warning.’” (Ibid.) Application of the Black decision here did not “‘disappoint[] reasonable expectations.’” (Sandoval, supra, at p. 857.) Appellant was put on notice under California Rules of Court, rule 4.420 that the aggravating factors here would subject him to an upper term sentence.
As stated in Sandoval: “In the present case, the removal by judicial decision of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to—and would not be expected to—have the effect of increasing the sentence for any particular crime. . . . To the extent the removal of the requirement that the middle term be imposed in the absence of aggravating or mitigating circumstances may be viewed as granting the trial court greater discretion to impose the upper term, the revision would afford the court an equally increased discretion to impose the lower term. Moreover, as noted above, the difference in the amount of discretion exercised by the trial court in selecting the upper term under the former DSL, as compared to the scheme we adopt for resentencing proceedings, is not substantial.” (Sandoval, supra, 41 Cal.4th at p. 855.)
In conclusion, the ex post facto clause was not violated by application of either amended section 1170 or Black to the sentencing of appellant.
V. Pitchess review.
Before trial, appellant made a Pitchess motion, seeking personnel records pertaining to Officers Ryan, Alley and Chacon. The trial court granted the motion in part and allowed discovery of claims of perjury and dishonesty against Officer Ryan, who wrote the police report. An in camera hearing was conducted. Appellant requests that we review the materials examined by the trial court during the in camera hearing to determine whether all discoverable information was disclosed to the defense.
The written Pitchess motion is not contained in the record.
In Pitchess, the California Supreme Court held that a criminal defendant is entitled to discover an officer’s personnel records if the information contained in the records is relevant to his ability to defend against the charge. Later enacted legislation implementing the court’s rule permitting discovery (§§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047) provides that a defendant, by written motion, may obtain information contained in a police officer’s personnel records if it is material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) If the court orders disclosure, the custodian of the officer’s records brings to court all the potentially relevant personnel records and, in camera, the trial court determines whether any of the records are to be disclosed to the defense. During the in camera hearing, neither the defense nor the prosecution is present. (People v. Mooc (2001)26 Cal.4th 1216, 1226-1227 (Mooc).)
In Mooc, the California Supreme Court described the trial court’s obligations in conducting the in camera hearing so as to facilitate appellate review of its in camera rulings as follows: “The trial court should . . . make a record of what documents it examined before ruling on the Pitchess motion. . . . Without some record of the documents examined by the trial court, a party’s ability to obtain appellate review of the trial court’s decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer’s privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed.” (Mooc, supra, 26 Cal.4th at p. 1229, fn. omitted.)
We have independently reviewed the sealed reporter’s transcript of the in camera hearings regarding the Pitchess discovery of Officer Ryan’s records. The trial court’s findings during that review, as reflected in the sealed transcript, were sufficient to permit appellate review of its rulings. (See Mooc, supra, 26 Cal.4th at pp. 1229, 1232.) We find no error in the trial court’s ruling at the in camera hearing.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J., CHAVEZ, J.