Opinion
A113729
4-27-2007
THE PEOPLE, Plaintiff Respondent, v. DAVID J. GAYANICH, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant was convicted following a jury trial of possession of a weapon while in custody (Pen. Code, § 4502, subd. (a)). The trial court found that defendant suffered prior convictions and served three prior prison terms. He was sentenced to an aggregate term of seven years in state prison. In this appeal he claims that the trial court erred by admitting evidence of an uncharged violation of county jail disciplinary regulations, and violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296, by imposing an upper term. We conclude that the court did not err by admitting the uncharged acts evidence, and no prejudicial sentencing error occurred. We therefore affirm the judgment.
STATEMENT OF FACTS
Defendant began his incarceration as an inmate in San Quentin State Prison on March 23, 2004. He received a "CDC 115" rules violation report for a "physical fight" with another inmate on April 17, 2004. He was thereafter assigned to the Donner Section of the Administrative Segregation Housing Unit of the prison used for prisoners who have sustained a "rule violation."
Defendant was the sole occupant of cell No. 3D23, assigned to the lower bunk as of April 17, 2004. Another inmate occupied cell No. 3D23 before defendant, but vacated the cell on an unknown date. Prison rules required a "thorough search" of the cell after it was vacated by the previous occupant, and preparation of a 114A report that confirmed the cell was "clean" and functioning before it was assigned to another prisoner. The cell was vacant the day before defendant began to occupy it.
Prisoners assigned to the Administrative Segregation Housing Unit of the prison are all "single-celled." No one was assigned to the upper bunk of the cell.
On the morning of April 29, 2004, correctional officer Jeffery Gill handcuffed and removed defendant from his cell for a "security escort" to an administrative hearing. Defendant was the "only individual" in the cell. He "appeared very nervous" to Officer Gill "during the escort down the stairs." Officer Gill then searched cell No. 3D23. In plain view on the top bunk of the cell he found an "inmate manufactured weapon" wrapped in thin, green paper. He described the weapon as a "state issued toothbrush" with a sharp "arrowhead shaped" piece of metal security screening "melted onto" the end of it. Two "contraband" lighters were also found "directly next" to the weapon on the bunk. A "section of security screening," which Officer Gill concluded had been added to the tip of the weapon, was missing from the door of defendants cell.
The uncharged act occurred on October 1, 2005, while defendant was incarcerated in Marin County Jail awaiting trial. He was "housed by himself" in a single cell. At 8:45 a.m., Deputy Sheriff Robert McBlair conducted a routine search of defendants cell. On the bookshelf above the desk the deputy discovered paper clips, one of which had been "sharpened at both ends." Deputy McBlair testified that the paper clips are contraband, as they "can be made into weapons" or "used to escape." He therefore seized the paper clips and wrote a "disciplinary report" on the incident.
DISCUSSION
I. The Admission of Evidence of an Uncharged Criminal Act
Defendant argues that the trial court erred by admitting evidence of his "subsequent possession of a sharpened paper clip while in the Marin County Jail" to prove "knowledge and absence of mistake." He claims that the offense of possession of a weapon while in custody is a "general intent crime," so "it was not necessary for the prosecution to prove any specific intent as to which knowledge would have been relevant." He also maintains that the defense did not claim "the weapon in his San Quentin prison cell was possessed or had been placed there by mistake." Therefore, neither his knowledge nor absence of mistake was at issue in the case, and the evidence of his "subsequent, uncharged conduct was essentially equivalent to disposition and propensity evidence otherwise proscribed by Evidence Code section 1101, subdivision (a)." Defendant acknowledges that the jury was given an instruction to consider the "evidence . . . of a sharpened paper clip" only for the "limited purpose" of "showing prior knowledge or absence of mistake," but insists the instruction "did not obviate the error," and instead only reinforced to the jury "that he was disposed to possess weapons while incarcerated."
"The rules governing the admissibility of evidence of other crimes are familiar and well settled. Evidence Code section 1101, subdivision (b) provides in pertinent part that evidence of other crimes is admissible `when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." (People v. Gray (2005) 37 Cal.4th 168, 202; see also People v. Jablonski (2006) 37 Cal.4th 774, 822-823; People v. Catlin (2001) 26 Cal.4th 81, 111; People v. Diaz (1992) 3 Cal.4th 495, 561; People v. Branch (2001) 91 Cal.App.4th 274, 280; People v. Van Winkle (1999) 75 Cal.App.4th 133, 140.) " `The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352. [Citations.] [Citations.]" (People v. Brown (1993) 17 Cal.App.4th 1389, 1395; see also People v. Carpenter (1997) 15 Cal.4th 312, 378-379.) "Because this type of evidence can be so damaging, `[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded. [Citation.]" (People v. Daniels (1991) 52 Cal.3d 815, 856; see also People v. Gray, supra, at p. 202; People v. Hawkins (1995) 10 Cal.4th 920, 951; People v. Johnson (1991) 233 Cal.App.3d 425, 443-444.)
"We review for abuse of discretion a trial courts rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." (People v. Cole (2004) 33 Cal.4th 1158, 1195) "`A court abuses its discretion when its ruling "falls outside the bounds of reason." [Citation.]" (People v. Catlin, supra, 26 Cal.4th 81, 122.)
A. The Materiality of the Evidence
We first look at the probative value of the evidence that after his arrest defendant possessed contraband paper clips in county jail, one of which had been sharpened. As with other forms of circumstantial evidence, "the admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.] In order to be material, the fact in dispute `may be either an ultimate fact in the proceeding or an intermediate fact "from which such ultimate fact[] may be . . . inferred." [Citation.]" (People v. Catlin, supra, 26 Cal.4th at 81, 146; see also People v. Robbins (1988) 45 Cal.3d 867, 879; People v. Thompson (1980) 27 Cal.3d 303, 315.) To be admissible, evidence of an uncharged offense must tend logically, naturally and by reasonable inference to establish any fact material to the Peoples case, or to overcome any matter sought to be proved by the defense. (People v. Robbins, supra, at p. 879; see also People v. Catlin, supra, at p. 146; People v. Carter (1993) 19 Cal.App.4th 1236, 1246.)
Evidence of defendants subsequent possession of the sharpened paper clip while incarcerated was admitted for the proper and limited purpose of proving that he acted with the requisite knowledge of his possession of the weapon. (See People v. Thornton (2000) 85 Cal.App.4th 44, 49-50; People v. Ellers (1980) 108 Cal.App.3d 943, 953.) The absence of a specific intent requirement to prove a violation of Penal Code section 4502 did not remove the issue of knowledge from dispute or consideration in the case. "Section 4502 provides in pertinent part: `Every person confined in a state prison or who, . . . while under the custody of prison officials, officers or employees, possesses or carries upon his person or has under his custody or control any . . . sharp instrument, . . . is guilty of a felony. . . . In order to show a violation of this statute, the prosecution need not prove the intent or purpose for which the prohibited instrument was possessed. [Citation.] It must, however, prove that the defendant knew the prohibited object was in his possession." (People v. Reynolds (1988) 205 Cal.App.3d 776, 779; see also People v. Evans (1969) 2 Cal.App.3d 877, 881.) Beyond merely the general intent to do the prohibited act, the crime requires proof of the defendants "knowledge of actual or constructive possession" of the weapon while confined in state prison. (People v. Strunk (1995) 31 Cal.App.4th 265, 272; see also People v. Jurado (1972) 25 Cal.App.3d 1027, 1030-1031.) Knowledge that the possession is illegal is unnecessary, but knowledge of the presence and character of the object possessed is an essential element of the offense. (See In re Jorge M. (2000) 23 Cal.4th 866, 877; People v. Taylor (2001) 93 Cal.App.4th 933, 939-940; People v. Westlund (2001) 87 Cal.App.4th 652, 657-658; People v. Strunk, supra, at p. 272.)
The knowledge element of the charged offense was of course placed in issue by defendants not guilty plea. (See People v. Catlin, supra, 26 Cal.4th 81, 146; People v. Balcom (1994) 7 Cal.4th 414, 422.) A fact like defendants intent or knowledge "`generally becomes "disputed" when it is raised by a plea of not guilty or a denial of an allegation. . . . Such a fact remains "disputed" until it is resolved." (People v. Thornton, supra, 85 Cal.App.4th 44, 48-49.) The defense did not remove the issue of knowledge by admitting that defendant knew of the presence of the weapon in his cell. To the contrary, the tenor of the defense was that the weapon may have been placed in the cell by the previous occupant without defendants knowledge. Thus, the essential element of knowledge remained a disputed issue at trial.
While other evidence of the knowledge element of the offense may have been adduced—specifically, the status of defendant as the sole occupant of the cell, and the presence of a lighter near the weapon that may have been used to fuse the screen to the toothbrush—defendants subsequent possession in county jail of a similar item capable of use as a weapon furnished a strong inference that the presence of a weapon in his San Quentin cell was not without his knowledge. (See People v. Pijal (1973) 33 Cal.App.3d 682, 691.) The evidence was thus quite material to the issues before the jury. (See People v. Douglas (1990) 50 Cal.3d 468, 510-511; People v. Ortiz (2003) 109 Cal.App.4th 104, 113-116; People v. Brown, supra, 17 Cal.App.4th 1389, 1395; People v. Evers (1992) 10 Cal.App.4th 588, 598-599; People v. Key (1984) 153 Cal.App.3d 888, 894.)
B. The Similarity of the Subsequent Misconduct
We further conclude that the subsequent uncharged misconduct was sufficiently similar to the charged offense to justify admission of the deputys testimony as evidence of defendants knowledge. "A court considering this question `"must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong." [Citations.]" (People v. Carter, supra, 19 Cal.App.4th 1236, 1246.) " ` "Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care." [Citation.] [Citation.]" (People v. Gray, supra, 37 Cal.4th 168, 202.) The least degree of similarity is required to establish relevance on the issues of intent or knowledge. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402; People v. Tapia (1994) 25 Cal.App.4th 984, 1021.) " `For this purpose, the uncharged crimes need only be "sufficiently similar [to the charged offenses] to support the inference that the defendant ` "probably harbored the same [knowledge] in each instance." [Citations.]" [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 637; see also People v. Carpenter, supra, 15 Cal.4th 312, 379; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1445; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210.) The recurrence of a similar result tends increasingly with each instance to negative accident or inadvertence or other innocent mental state, and tends to establish the requisite knowledge. (See People v. Hawkins, supra, at p. 1445.) If a person acts similarly in similar situations, he probably harbors the same knowledge or intent in each instance; the inference to be drawn is that, in light of the uncharged event, the actor, at the time of the charged event, must have had the knowledge or intent attributed to him by the prosecution. (People v. Miller (2000) 81 Cal.App.4th 1427, 1448.) "Only substantial similarity is required." (People v. Tapia, supra, at p. 1021.)
In contrast, "under case law interpreting Evidence Code section 1101, subdivision (b), an extremely high degree of similarity between charged and uncharged crimes was required to establish the uncharged crimes admissibility to prove identity. `For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] "The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." [Citation.] [Citations.]" (People v. Britt (2002) 104 Cal.App.4th 500, 505.)
We find enough similarity in the two incidents to justify admission of the uncharged misconduct evidence. Defendants possession of a sharpened paper clip in county jail indicated that his prior possession of a sharpened toothbrush in his San Quentin prison cell was accompanied by his knowledge that a prohibited weapon was in his possession. (See People v. Tapia, supra, 25 Cal.App.4th 984, 1022.)
C. The Admissibility of the Evidence Under Evidence Code Section 352
We turn to defendants claim that evidence of the subsequent incident, even if material and sufficiently similar enough to the charged offense, was nevertheless subject to exclusion under Evidence Code section 352. "In addition to its relevance to an issue other than predisposition or propensity, to be admissible under [Evidence Code] section 1101, subdivision (b), the probative value of the evidence of uncharged crimes `must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.]" (People v. Walker (2006) 139 Cal.App.4th 782, 796.) "Once a court determines that a prior bad act is admissible under Evidence Code section 1101, subdivision (b), it must conduct a further inquiry. `Evidence of uncharged offenses "is so prejudicial that its admission requires extremely careful analysis. . . ." . . . [¶] . . . [T]o be admissible such evidence "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. . . ." [Citation.] A court must therefore also examine whether the probative value of prior bad act evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Zepeda, supra, 87 Cal.App.4th 1183, 1210-1211.) " ` "Since `substantial prejudicial effect [is] inherent in [such] evidence, uncharged offenses are admissible only if they have substantial probative value." [Citation.] [Citation.]" (People v. Hawkins, supra, 98 Cal.App.4th 1428, 1445, italics omitted.)
"The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (People v. Zepeda, supra, 87 Cal.App.4th 1183, 1211.) "The weighing process under [Evidence Code] section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
"The courts exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value." (People v. Brown, supra, 17 Cal.App.4th 1389, 1396.) "We will reverse only if the courts ruling was `arbitrary, whimsical, or capricious as a matter of law. [Citation.] [Citation.]" (People v. Branch, supra, 91 Cal.App.4th 274, 282.)
We have observed that the uncharged misconduct evidence had appreciable probative value on the issue of knowledge. Defendants repetition of the act of possession of a weapon while incarcerated demonstrated that the charged possession was not uninformed, inadvertent, mistaken or innocent. The evidence was damaging to the defense, but not prejudicial in the sense contemplated by Evidence Code section 352. " ` "The `prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against . . . [one party] as an individual and which has very little effect on the issues." [Citation.]" (People v. Garceau (1993) 6 Cal.4th 140, 178; see also People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) " `In applying section 352, "prejudicial" is not synonymous with "damaging." [Citations.]" (People v. Callahan (1999) 74 Cal.App.4th 356, 371.) Defendants claim that the evidence was subject to improper consideration to prove disposition is negated by the limiting instruction given by the trial court and the prosecutors admonition to the jury while discussing the knowledge element that the evidence was "limited as to purpose, and that means dont take that evidence and say: Well, look, he had a sharp[ened] instrument then; he must have a sharp[ened] instrument now. [¶] Specifically, dont do that. Thats not a proper inference to draw from that testimony. It was limited only to the issue of knowledge and absence of mistake." The jury is presumed to have adhered to the admonitions. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1023.) The source of the evidence was also unrelated to the charged offense, and the two incidents occurred very close in time. We find that the trial court did not abuse its discretion by admitting the uncharged acts evidence.
II. The Imposition of the Upper Term on Count 1
Defendant also claims that the imposition of an upper term sentence on count 1 violated his "jury trial and due process rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution" as articulated in Blakely v. Washington, supra, 542 U.S. 296, 301 (Blakely), and United States v. Booker (2005) 543 U.S. 220, (Booker). He argues that the trial courts "findings of aggravating factors in the absence of a trial by jury" requires reversal of the upper term sentence for the conviction of possession of a weapon while in custody.
In Blakely, the United States Supreme Court revisited the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), 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." (Blakely, supra, 542 U.S. 296, 301, italics added.) The court found that an exceptional sentence beyond the standard range sentence for the offense imposed by a trial judge under Washingtons determinate sentencing based upon several specified facts found by the trial judge violated the Apprendi rule that the jury verdict alone must "authorize the sentence." (Blakely, supra, at p. 305, fn. 8; see also People v. Riskin (2006) 143 Cal.App.4th 234, 241; People v. Linder (2006) 139 Cal.App.4th 75, 83-84.) The court in Blakely operated from the premise pronounced in both its Apprendi and Ring decisions that a defendants constitutional rights have been violated when a judge imposes "a sentence greater than the maximum he could have imposed under state law without the challenged factual finding." (Blakely, supra, at p. 303, citing Apprendi, supra, at pp. 491-497, and Ring v. Arizona (2002) 536 U.S. 584, 603-609.) The court defined "the `statutory maximum for Apprendi purposes" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant `statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment, [citation], and the judge exceeds his proper authority." (Blakely, supra, at p. 303, italics omitted.)
The United States Supreme Court provided additional guidance on the distinction between permissible and impermissible judicial factfinding in Booker, supra, 543 U.S. 220, where the defendant received a term under the federal sentencing guidelines that exceeded the base range following the trial judges finding by a preponderance of the evidence that he possessed an amount of drugs in excess of that determined by the jurys verdict. In Booker, a majority of the court "found no significant distinction between the mandatory federal sentencing guidelines and the Washington sentencing law at issue in Blakely and concluded the federal guidelines violated the Sixth Amendment." (People v. Linder, supra, 139 Cal.App.4th 75, 83, citing Booker, supra, at p. 233.) The high court in Booker concluded that the federal guidelines violate the Sixth Amendment because "the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges." (Booker, supra, at p. 233.) "Thus, just as in Blakely," the court declared, " `the jurys verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact. " (Booker, supra, at p. 235, quoting Blakely, supra, 542 U.S. 296, 305.)
The defendant in Booker was convicted of possessing at least 50 grams of cocaine, conduct for which the guidelines authorized a sentence of between 210 and 262 months for a person with Bookers criminal history. Booker, however, was sentenced to 360 months because, at the sentencing hearing, the judge found by a preponderance of the evidence that he possessed an additional 566 grams of cocaine, a finding that authorized a longer sentence under the guidelines. "The jury never heard any evidence of the additional drug quantity, and the judge found it true by a preponderance of the evidence. Thus, just as in Blakely, `the jurys verdict alone does not authorize the sentence. " (Booker, supra, 543 U.S. 220, 235.)
The California Determinate Sentencing Law (DSL) was temporarily spared from the reach of Blakely and Booker by the decision in People v. Black (2005) 35 Cal.4th 1238 (Black), where the California Supreme Court decided that a "defendants constitutional right to a jury trial" is "not violated by the trial courts imposition of the upper term sentence" for a conviction "or by its imposition of consecutive sentences" upon two or more convictions. (Id. at p. 1264.) After defendant submitted his opening brief, however, the United States Supreme Court reversed the Black decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 861] (Cunningham), where the defendant was "tried and convicted of continuous sexual abuse of a child under the age of 14[, which under the DSL is] . . . punishable by imprisonment for a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years. Cal. Penal Code Ann. § 288.5(a)." At the sentencing hearing the trial court found six aggravating circumstances, all related to commission of the offense—as the defendant had no prior record of criminal conduct—and on that basis imposed the upper term. The court observed that "the DSL regime is implemented in the following manner. The statute defining the offense prescribes three precise terms of imprisonment—a lower, middle, and upper term sentence. E.g., Penal Code § 288.5(a) (West 1999) (a person convicted of continuous sexual abuse of a child `shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years). See also Black, 35 Cal.4th, [1238, 1247], 113 P.3d, at 538. Penal Code § 1170(b) (West Supp.2006) controls the trial judges choice; it provides that `the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. `[C]ircumstances in aggravation or mitigation are to be determined by the court after consideration of several items: the trial record; the probation officers report; statements in aggravation or mitigation submitted by the parties, the victim, or the victims family; `and any further evidence introduced at the sentencing hearing. [Citation.]" (Cunningham, supra, 127 S.Ct. 856, 861-862.) "Under Californias DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. [Citation.] An element of the charged offense, essential to a jurys determination of guilt, or admitted in a defendants guilty plea, does not qualify as such a circumstance. [Citation.] Instead, aggravating circumstances depend on facts found discretely and solely by the judge." (Id. at p. 868.)
The court in Cunningham concluded: "In accord with Blakely, therefore, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Blakely, supra, 542 U.S. 296, 303 (`The "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant (Emphasis in original.).)] Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendis bright-line rule: Except for 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. 466, 490.]" (Cunningham, supra, 127 S.Ct. 856, 869.) The court summarized: "Contrary to the Black courts holding, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Id., at p. 871; see also People v. Brown (2007) 148 Cal.App.4th 911, 917.)
A. Defendants Failure to Object to the Blakely Error
We must now consider defendants claim of sentencing error in light of Cunningham, but we first confront the Attorney Generals contention that defendant "forfeited his claim by failing to object." The Attorney General points out that defendant was sentenced "after Blakely was issued," and therefore he had notice of a reason to object.
"Under California law, a defendants failure to object in the trial court, even to errors of constitutional dimension, may lead to forfeiture of his claim of error on appeal." (People v. Esquibel (2006) 143 Cal.App.4th 645, 659-660.) However, "Not all claims of error are prohibited in the absence of a timely objection in the trial court. A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights." (People v. Vera (1997) 15 Cal.4th 269, 276.) Further, failure to object does not prevent correction or vacation of an "unauthorized sentence" on appeal. (In re Birdwell (1996) 50 Cal.App.4th 926, 931.) "An unauthorized sentence is a narrow exception to the requirement that the parties raise their claims in the trial court to preserve the issue for appeal." (People v. Breazell (2002) 104 Cal.App.4th 298, 304.) "[A] sentence is generally `unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is `clear and correctable independent of any factual issues presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354; see also People v. Breazell, supra, at p. 304; People v. McGee (1993) 15 Cal.App.4th 107, 117.) "Claims involving unauthorized sentences or sentences entered in excess of jurisdiction can be raised at any time." (People v. Andrade (2002) 100 Cal.App.4th 351, 354; see also People v. Turner (2002) 96 Cal.App.4th 1409, 1415.) A related exception to the waiver rule is that it "is generally not applied when the alleged error involves a pure question of law, which can be resolved on appeal without reference to a record developed below." (People v. Williams (1999) 77 Cal.App.4th 436, 460.)
Here, defendant has presented a claim of deprivation of the fundamental constitutional rights to jury trial and proof beyond a reasonable doubt. (People v. Holmes (1960) 54 Cal.2d 442, 443-444.) The constitutional challenge made by defendant is an issue of law that we may decide without reference to the particular sentencing record developed in the trial court. (In re Justin S. (2001) 93 Cal.App.4th 811, 815.) And if his position is found to have merit, the sentence may not lawfully be imposed under any circumstances without a jury trial. As an unauthorized component of the disposition of defendants case the error may be corrected on appeal despite the lack of an objection in the trial court. (Ibid. ; People v. Cleveland (2001) 87 Cal.App.4th 263, 268, fn. 2; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534; People v. Chambers (1998) 65 Cal.App.4th 819, 823; In re Paul R. (1996) 42 Cal.App.4th 1582, 1590; People v. Sexton (1995) 33 Cal.App.4th 64, 69.)
Finally, although Blakely was decided before defendant was sentenced, so was Black. Thus, given the state of the controlling law at the time of the sentencing hearing, defendant had no reason to object in the face of established California law that definitively denied criminal defendants the constitutional right to a jury trial in connection with the imposition of an upper term of imprisonment. (See People v. Esquibel, supra, 143 Cal.App.4th 645, 660; People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231; People v. Ramos (1980) 106 Cal.App.3d 591, 605-606; People v. Williams (1980) 103 Cal.App.3d 507, 510; People v. Betterton (1979) 93 Cal.App.3d 406, 410-411; People v. Nelson (1978) 85 Cal.App.3d 99, 102-103; United States v. Harrison (8th Cir. 2003.) 340 F.3d 497, 500.) We cannot find that defendant voluntarily and intelligently waived a known right, or forfeited his right to object on appeal, by failing specifically to raise an objection in a timely fashion. We therefore conclude that defendant is not foreclosed from complaining of denial of the right to a jury trial under Blakely, and despite the lack of an objection below we elect to address his constitutional claims of Blakely error on their merits. (People v. Peck (1996) 52 Cal.App.4th 351, 362, fn. 5; see also People v. Marshall (1996) 13 Cal.4th 799, 831-832; People v. Ashmus (1991) 54 Cal.3d 932, 976; In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 537; People v. Williams (1998) 61 Cal.App.4th 649, 657.)
B. The Finding of Aggravating Factors by the Trial Court
Looking at the record before us, the trial court found, this is "a crime that indicates planning, sophistication, or professionalism" in the construction of the weapon. The court also specifically relied on two additional factors to impose the upper term: defendants numerous prior convictions, and "his prior performance on probation or parole has resulted in frequent revocations and returns to custody." Under Cunningham, the trial courts finding of the aggravating factor of the planning and sophistication associated with the crime was error absent a finding by the jury beyond a reasonable doubt or admission by defendant. (Cunningham, supra, 127 S.Ct. 856, 871.)
The finding of the remaining aggravating factors related to defendants prior convictions and performance on parole or probation did not violate the precepts articulated in Blakely and Cunningham. In Apprendi the court specifically declared, based on its prior decision in Almendarez-Torres v. United States (1998) 523 U.S. 224, that, "Other 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. 466, 490, italics added; see also People v. Taylor (2004) 118 Cal.App.4th 11, 28; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314.) Thus, "[b]y its terms, the holding of Apprendi does not apply to `the fact of a prior conviction . . . . [Citation.]" (People v. Taylor, supra, at p. 28.) "Apprendi was absolutely clear in excepting the fact of prior convictions from its new rule." (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 154.)
Nothing articulated in the Blakely or Cunningham opinions casts doubt upon the exclusion in Apprendi of prior conviction allegations from the constitutional right to jury trial. In fact, in Cunningham the court repeated once again the established limitation on the Apprendi rule that "the [f]ederal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham, supra, 127 S.Ct. 856, 860, italics added.) The California Supreme Court has consistently held that neither the state nor federal Constitution confer the right to have a jury determine any factual issues relating to prior convictions alleged for purposes of enhancing sentence. (People v. Epps (2001) 25 Cal.4th 19, 23; People v. Kelii (1999) 21 Cal.4th 452, 455; People v. Vera, supra, 15 Cal.4th 269, 277; People v. Wiley (1995) 9 Cal.4th 580, 585.) Even in the aftermath of Apprendi our high court held: "The right, if any, to a jury trial of prior conviction allegations derives from [Penal Code] sections 1025 and 1158, not from the state or federal Constitution." (People v. Epps, supra, at p. 23; see also People v. Belmares (2003) 106 Cal.App.4th 19, 27.)
The exception has also been found to apply not only to the fact of a prior conviction, but to "an issue of recidivism which enhances a sentence and is unrelated to an element of a crime." (People v. Thomas (2001) 91 Cal.App.4th 212, 223; see also People v. Taylor, supra, 118 Cal.App.4th 11, 28-29.) A narrow reading of the Apprendi language to apply to nothing more than the " `fact of a prior conviction "fails to consider the bases for the exception, and "takes that language out of its context." (People v. Thomas, supra, at p. 216.) A reason for the exemption of prior convictions from the scope of the jury trial requirement for increased sentences, explained the court, is that "procedural safeguards attached to any `fact of prior conviction." (Apprendi, supra, 530 U.S. 466, 488; see also People v. Lee, supra, 111 Cal.App.4th 1310, 1314.) The court further emphasized that the typical sentencing factor of a prior conviction "`"does not relate to the commission of the offense."" (Apprendi, supra, at pp. 488, 496, quoting Almendarez-Torres v. United States, supra, 523 U.S. 224, 230, 244; see also People v. Taylor, supra, at p. 29.) And finally, the court "excepted the fact of a prior conviction from this holding, because of the long tradition allowing sentencing judges to consider the defendants recidivism." (People v. Bowden (2002) 102 Cal.App.4th 387, 392; see also Jones v. United States (1999) 526 U.S. 227, 249.) "[R]ecidivism `is as typical a sentencing factor as one might imagine. [Citation.]" (Castillo v. United States (2000) 530 U.S. 120, 126.) We therefore conclude that the trial court in the case before us did not violate defendants jury trial rights by finding aggravating circumstances based upon his recidivism.
C. The Standard of Reversible Error
We turn to the issue of prejudice, mindful that the United States Supreme Court has "repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead, `"most constitutional errors can be harmless." [Citations.] ` "[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis." [Citations.] Only in rare cases has this Court held that an error is structural, and thus requires automatic reversal. In such cases, the error `necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. [Citation.]" (Washington v. Recuenco (2006) ___ U.S. ___ [165 L.Ed.2d 466, 126 S.Ct. 2546, 2551], fn. omitted; see also People v. Scott (2001) 91 Cal.App.4th 1197, 1210.) " `The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. " (People v. Flood (1998) 18 Cal.4th 470, 492, citing Rose v. Clark (1986) 478 U.S. 570, 579.)
Here, the denial of the right to a jury trial is only associated with the finding of one of several aggravating circumstances that contributed to the selection of the upper term, not the structure of the trial itself that resulted in the guilty verdict or judgment. Defendant was tried and found guilty by a fairly selected, impartial jury. He was represented by counsel and received a full opportunity to elicit evidence and offer argument to an impartial judge to support imposition of a middle or lower term. Placed in context, the lack of a jury finding of an aggravating circumstance does not rise to the level of an error that automatically requires reversal of an otherwise valid sentence. (See Rose v. Clark, supra, 478 U.S. 570, 579; People v. Evans (1998) 62 Cal.App.4th 186, 197.) The nature of the error also permits a quantitative assessment of prejudice in the context of the evidence presented in order to determine whether the error was harmless. (Arizona v. Fulminante (1991) 499 U.S. 279, 307-308; People v. Marshall, supra, 13 Cal.4th 799, 851-852.) "Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error." (Washington v. Recuenco, supra, ___ U.S. ___, ___ [126 S.Ct. 2546, 2553]; see also People v. Epps, supra, 25 Cal.4th 19, 29; People v. Vera, supra, 15 Cal.4th 269, 278; People v. Marshall, supra, at pp. 851-852.) Rather, we follow the federal standard of review of constitutional errors (Chapman v. California (1967) 386 U.S. 18, 24), and must reverse the sentence unless it appears beyond a reasonable doubt that the assumed error did not contribute to the verdict. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326; People v. Neal (2003) 31 Cal.4th 63, 86; People v. Carter (2003) 30 Cal.4th 1166, 1221-1222; .) For Blakely error to require reversal, the error " `must have affected the outcome of the [trial] court proceedings. [Citations.]" (United States v. Cotton (2002) 535 U.S. 625, 632; People v. Taulton (2005) 129 Cal.App.4th 1218, 1226.)
D. The Assessment of Prejudice Under the Chapman Standard
To impose the upper term upon defendant, the trial court erred by considering the planning and sophistication of the crime, but properly relied upon aggravating factors that do not fall within the reach of the right to a jury trial articulated in Blakely. The trial court expressly allocated only "light weight" in its sentencing decision to the planning and sophistication factors. On the other hand, defendants numerous prior convictions—the probation report noted that defendant was facing his eighth felony case—and prior poor performance on probation or parole were factors essentially either uncontroverted or supported by overwhelming evidence found in court records, and did not relate to commission of the current offense. (United States v. Cotton, supra, 535 U.S. 625, 632-633.) "A single factor in aggravation will support imposition of an upper term. [Citation.] `When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]" (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434; see also People v. Osband (1996) 13 Cal.4th 622, 730; People v. Brown (2000) 83 Cal.App.4th 1037, 1043-1044.) No mitigating factors were cited by the court or mentioned in the probation report.
We observe that the planning and sophistication factor was also hardly subject to dispute.
Considering the unrelenting record of defendants convictions, we are convinced that there is no reasonable probability that the trial court would have imposed a lesser sentence. Thus, the trial courts error in finding one aggravating factor was not prejudicial to defendant and does not require reversal. (See People v. Taulton, supra, 129 Cal.App.4th 1218, 1226; People v. Burbine (2003) 106 Cal.App.4th 1250, 1263-1264; People v. Williams (1996) 46 Cal.App.4th 1767, 1782-1783.)
III. The Error in the Abstract of Judgment
Defendant asks us to correct the abstract of judgment, which reflects that he was convicted by plea rather than a jury of the custodial possession of a weapon offense. The Attorney General concedes the mistake in the abstract of judgment. The abstract of judgment, while not the judgment of conviction, is " `the order sending the defendant to prison and "the process and authority for carrying the judgment and sentence into effect." [Citations.] [Citation.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) As the Attorney General also acknowledges, this court is authorized to order correction of an abstract of judgment that does not accurately reflect the proceedings in the trial court. (Ibid.; People v. Avila (1999) 75 Cal.App.4th 416, 424.)
DISPOSITION
Accordingly, the clerk of the superior court is directed to modify the abstract of judgment to reflect the conviction by jury verdict rather than by plea, and to forward a copy of the amended abstract of judgment to the California Department of Corrections. The judgment is affirmed in all other respects.
We Concur:
STEIN, Acting P. J.
MARGULIES, J.