Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F07173
BLEASE , Acting P. J.
A jury found that defendants Roy George, Jr. and Dante McFall assaulted and attempted to rob 74-year-old newspaper carrier Fredrick Bentley as Bentley was delivering newspapers in the early morning hours of July 31, 2005. Both defendants were found guilty of attempted robbery. (Pen. Code, §§ 664/211.)
The jury also found McFall guilty of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) and elder abuse with force likely to produce great bodily injury. (Pen. Code, § 368, subd. (b)(1).) The jury found true allegations that McFall personally inflicted great bodily injury on a victim who was 70 years of age or older (§ 12022.7, subd. (c).)
Further references to an undesignated statute are to the Penal Code.
In addition to finding George guilty of attempted robbery, the jury found him guilty of the lesser included offenses of misdemeanor assault and elder abuse. It further found that George had suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12.)
McFall was sentenced to an aggregate term of nine years in state prison. George was sentenced to an aggregate term of 11 years in state prison.
FACTUAL AND PROCEDURAL BACKGROUND
Seventy-four-year-old Bentley was delivering newspapers for the Sacramento Bee the morning of July 31, 2005. He testified that as he was returning to his truck from delivering a paper to the Plazas apartment complex, he saw someone in his truck. Bentley made a “smart remark” to the person he thought was trying to steal the truck, then he “got whacked from behind” and recalled nothing else until he was in the hospital.
Bentley’s testimony differed in several respects from that of the three young men who, with the defendants and others, had gathered outside the Plazas that night (Isaac Butler, Germaine O’Neil, and Derrick Smith), and who testified at trial. Two, Butler and Smith, were given immunity for their testimony in court, and O’Neil waived his Fifth Amendment rights as part of a guilty plea. Their stories were largely in agreement.
Butler, defendant George, and Roydrick Houston were standing and talking outside Houston’s apartment complex, the Plazas. O’Neil arrived, driving a red Honda. Defendant McFall was in the front passenger seat of the Honda, and Greg Frye and Derrick Smith were seated in the back.
Houston and defendant George walked over to the red Honda to talk to the four in the car. The group noticed Bentley exit his truck. Houston told the group to steal the truck. George went to the truck, saw that it was a manual transmission, and decided he was unable to drive it. George returned to the group, never having entered the truck. Houston then told the group to rob Bentley. Defendant George went back to Bentley’s truck, opened the door, and started talking to Bentley. Defendant McFall ran to the passenger side of Bentley’s truck. Houston then directed O’Neil to block Bentley’s truck so he could not drive away.
Defendant McFall hit Bentley two or three times on the head. Bentley got out of the truck, but McFall ran around to the driver’s side of the truck and continued to hit Bentley in the face. Bentley fell to the ground. Defendant George stood over Bentley, as if he were going to go through Bentley’s pockets.
As a result of the attack, Bentley suffered a fractured skull, a concussion, a laceration on the back of his head that required staples, four broken ribs, and bleeding on the brain. The emergency room doctor described Bentley’s head injury as potentially life threatening.
DISCUSSION
I
Issues Raised by George
A. Exclusion of 911 Tape
George argues the trial court erred in excluding evidence of a 911 call Houston made after the attack. During the call Houston gave his address and requested an ambulance because the victim was “bleeding bad” and “he hecka old[.]”
However, when the operator tried to ask Houston what had happened, he was less than forthcoming. The operator asked if the victim told Houston what had happened, to which Houston replied, “Nah, I saw it out the -- at my mom’s house (unintelligible) and some dudes beat the shit out of him.” Thereafter, Houston deflected the operator’s query about what Houston had seen by telling her to “just bring an ambulance[.]” Finally, he became impatient and said, “This shit ain’t -- ya’ll asking me hella questions. Why don’t y’all just bring an ambulance?”
In response to defendant George’s request to introduce the 911 tape, the trial court found the first part of Houston’s 911 call qualified as an excited utterance exception to the hearsay rule, but that from the point of his response to the operator’s question, “Did he say what happened to him[,]” the statements did not qualify as an excited utterance because Houston began to edit himself.
The tape also contained the voice of someone identified as Tommy Champagne. George sought to introduce the entire tape, but his appeal addresses only the exclusion of Houston’s statement.
George argues the tape of the conversation reveals no self-editing on Houston’s part, that such a fact does not render the statement non-spontaneous, that the transcript of the call was inaccurate, and that nothing suggested Houston’s statements were fabricated. George further argues the improper exclusion of the evidence was prejudicial because Houston’s statement tended to show Houston never instructed anyone to rob Bentley, and because it tended to show the attempted robbery and assault were perpetrated entirely by the occupants of the red Honda or some other group.
Evidence Code section 1240 codifies the spontaneous declaration exception to the hearsay rule. A statement qualifies as a spontaneous declaration if: (1) there was an occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance was made before there was time to contrive and misrepresent, i.e., while the nervous excitement dominated and the reflective powers were in abeyance; and (3) the utterance related to the circumstance of the startling occurrence. (People v. Poggi (1988) 45 Cal.3d 306, 318.) Whether these requirements are satisfied is a question of fact vested in the discretion of the trial court, and we review the trial court’s determination for abuse of discretion. (Ibid.)
The most important element in determining whether the statement is sufficiently reliable to be admitted as a spontaneous declaration is the mental state of the declarant, i.e., whether the declarant made the statement without deliberation or reflection. (People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on other grounds as noted in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The trial court’s discretion is broadest when it makes this determination. (People v. Poggi, supra, 45 Cal.3d at p. 318.)
The trial court found that when the operator started asking Houston what had happened and the subject of the call switched from getting Bentley medical attention to trying to determine what had occurred, Houston’s tone and rhythm indicated he began to edit himself. George’s argument that every speaker decides what information to convey and what information to withhold is without merit. It was incumbent upon the trial court to determine whether Houston made the statement without deliberation or reflection. By saying Houston was editing himself, the trial court was simply expressing its determination that Houston was making the statement after deliberation or reflection, making the statement insufficiently reliable to qualify as an exception to the hearsay rule.
It is apparent from both the tape and the transcript that Houston did not want to answer any questions about what had happened. This alone supports the trial court’s inference that any answers he gave to questioning on that subject would have been made after reflection.
George’s claim that the trial court relied on an inaccurate transcript is without merit. It is apparent from the trial court’s remarks, including that it was relying on the tone and rhythm of Houston’s voice, that the court relied on the tape as well as the transcript.
We conclude it was well within the trial court’s discretion to exclude evidence of the 911 call because it was not sufficiently reliable to qualify as a spontaneous declaration.
B. Request for Judicially Conferred Immunity
Houston asserted his Fifth Amendment privilege when called as a witness. George requested the trial court grant immunity to Houston. The trial court refused, finding Houston’s statement would not be exculpatory, his testimony would not be essential, and the prosecution had a strong interest in not granting immunity to Houston.
George argues the denial of his motion to grant judicial immunity to Houston denied his rights to due process, to present a defense, and to confront the prosecution’s case. We disagree.
Immunity is an executive, not a judicial function. (United States v. Duran (9th Cir. 1999) 189 F.3d 1071, 1087.) In People v. Hunter (1989) 49 Cal.3d 957, 973, the Supreme Court stated that “the Courts of Appeal of this state have uniformly rejected the notion that a trial court has the inherent power, in such circumstances, to confer use immunity upon a witness called by the defense.” The court held that if such power existed, it would be limited to situations in which the defendant could show: (1) the testimony was clearly exculpatory, (2) the testimony was essential, and (3) there was no strong governmental interest countervailing against a grant of immunity. (Id. at pp. 973-974.)
In finding that Houston’s testimony would not be exculpatory, the trial court noted that Houston had given seven separate statements. Houston also gave a statement to George’s investigator. Even though the trial court made all the statements a part of the record, only the statement to George’s investigator is contained in the record before us.
The trial court determined after reading all of the statements that Houston’s testimony would not be exculpatory because he was not claiming that Bentley was beaten by a group, and because his statements were so inconsistent. Because evidence had been presented that Houston was calling the shots and because Houston’s own statements were so inconsistent, the trial court found his testimony would not be essential because they would not be a “clarifying factor” for the jury. The trial court found the government had a strong interest in refusing immunity to Houston because he was a “major player” in the case, was a “shot caller,” and still had liability.
George argues the inconsistency among Houston’s various statements was not relevant to a determination that the proposed testimony would have been exculpatory. He argues that on the important points to his defense, i.e., that Houston never told anyone to rob the victim and that Houston claimed the responsibility for the attempted robbery rested solely with the occupants of the red Honda, Houston’s statements were consistent. He argues the credibility of Houston would have been a determination for the jury to make. He claims that if the jury believed Houston never directed anyone to rob Bentley, there would have been no evidence of the conspiracy upon which the prosecution’s case against him rested.
George argues the testimony was essential to solve the discrepancy between the testimony of Smith and O’Neil. Smith testified Houston told the others to rob Bentley, whereas O’Neil told the others to see if Bentley had any money. We see no discrepancy in the testimony of Smith and O’Neil, because both appear to have testified that Houston was directing the others to steal Bentley’s money. Thus, the testimony was not essential to solve any discrepancy.
Further, we agree with the trial court that Houston’s involvement as the instigator of the attempted robbery is a valid governmental reason for declining to grant Houston immunity. The trial court’s decision reflects the appropriate deference to prosecutorial discretion.
Thus, assuming Houston’s credibility was not a basis on which the trial court could properly rely in determining whether the testimony was exculpatory, the testimony was not essential, and there was a strong governmental interest in not granting him immunity. The trial court did not err in failing to grant immunity to Houston.
C. Sufficiency of the Evidence
George argues there was insufficient evidence to prove a conspiracy because the only evidence of a conspiracy was inherently unreliable. Echoing his prior argument, he claims the sole evidence of a conspiracy was the testimony of Smith, who stated Houston “was like, rob that fool.” He argues Smith’s testimony was suspect because Smith initially lied to police, changed his story only when others implicated him, gave an entirely exculpatory statement, and gave a description of events that was inconsistent with that of other witnesses.
As previously stated, we disagree with George’s characterization that Smith’s testimony was materially different from O’Neil’s regarding Houston’s direction of the conspiracy. Neither Smith nor O’Neil appears to have been quoting Houston directly. Smith said Houston “was like, rob that fool,” after which George walked over to Bentley’s truck. O’Neil testified Houston “told us to go, go see if the old man got some money in his pockets[,]” after which George walked over to Bentley’s truck. Presumably, Houston was not directing the others to ask Bentley politely if he had any money, but to take whatever money he had. Thus, Smith was not the only witness to testify to a conspiracy to rob Bentley.
As to the other reasons for questioning the credibility of Smith’s testimony, the jury was presented with the facts that he initially lied to police and that he changed his story after being told others had implicated him. The jury was well aware that his statement tended to exonerate himself and that it was inconsistent in some respects with the testimony of the other witnesses.
It is the exclusive province of the jury to determine a witness’s credibility. (People v. Barnes (1986) 42 Cal.3d 284, 303.) Our job is to determine the evidence is reasonable in nature, credible, and of solid value. (Ibid.) In our determination of credibility, we look to see if the testimony is “‘so inherently incredible, so contrary to the teachings of basic human experience, so completely at odds with ordinary common sense, that no reasonable person would believe it beyond a reasonable doubt.’” (People v. Hovarter (2008) 44 Cal.4th 983, 996, quoting United States v. Chancey (11th Cir. 1983) 715 F.2d 543, 546.) We leave doubts about the credibility of witnesses to the jury “‘[e]xcept in... rare instances of demonstrable falsity....’” (People v. Hovarter, supra, at p. 996, quoting People v. Cudjo (1993) 6 Cal.4th 585, 609.)
In this case we cannot say that the testimony of Smith, an eyewitness whose testimony was not completely inconsistent with that of the other eyewitnesses, was so inherently incredible that no reasonable person would believe his testimony beyond a reasonable doubt. Moreover, on the critical point of Houston’s direction of the conspiracy to rob Bentley, Smith’s testimony was corroborated by that of O’Neil. This was sufficient evidence to support the verdict against him.
D. Sentencing
George claims the trial court erred in sentencing him to the upper term for count one, attempted robbery, on the grounds that he was on probation for a prior offense at the time of the present case and that he was on probation for two other misdemeanors involving violence or threat of violence. He argues the trial court violated his constitutional rights to a jury trial and due process when it sentenced him to the upper term without a finding by the jury that the aggravating factors upon which it relied were true.
George recognizes that the Supreme Court held in People v. Black (2007) 41 Cal.4th 799 (Black II) that the fact of a defendant’s recidivism is beyond the scope of the jury trial guarantee. Nevertheless, he raises the issue to preserve it “in anticipation of upcoming authority favorable to his position.”
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455] (Apprendi), the United States Supreme court held: “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.” The high court extended this rule to California’s Determinate Sentencing Law in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], wherein it held that a defendant’s Sixth and Fourteenth Amendment rights to a jury trial were violated when a judge imposed an upper term sentence based on the judge’s, rather than the jury’s, finding of aggravating circumstances. The court held that the middle term sentence is the maximum sentence a judge may impose unless the facts supporting the aggravating circumstances are found true by a jury. (Cunningham, supra, at p. 293 [166 L.Ed.2d at p. 876].)
Later, the California Supreme Court decided Black II, supra, in which it reasoned that because the existence of a single aggravating circumstance is legally sufficient under California’s determinate sentencing scheme to make a defendant eligible for the upper term, the existence of a single aggravating circumstance that has been established in accordance with constitutional requirements makes the upper term the statutory maximum term. (Black II, supra, 41 Cal.4th at p. 813.) Accordingly, the court 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.” (Id. at p. 816.)
For the reasons set forth in Black II there was no constitutional violation in the imposition of the upper term for count one, attempted robbery. “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Black II, supra, 41 Cal.4th at p. 818.) In California and elsewhere, courts have interpreted Apprendi to mean that, not only is no jury trial required as to the precise fact of a prior conviction, but also no right to jury trial exists on matters more broadly described as recidivism. (People v. McGee (2006) 38 Cal.4th 682, 700-709 and cases cited.)
Here, the trial court found George was on probation for a violent felony, as well as for two other misdemeanor offenses. This finding, based on George’s record of prior convictions, made him eligible for an upper term sentence.
II
Issues Raised by McFall
A. Group Assault Instruction
The prosecution asserted throughout the trial that McFall was the only person to physically attack Bentley.
The jury found true a sentence enhancement alleged against McFall pursuant to section 12022.7, subdivision (c). That subdivision provides: “[a]ny person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.” This enhancement was alleged with regard to counts two and three, assault and elder abuse.
The Supreme Court has held that a defendant “personally inflicts” injury if he “physically joins a group attack, and directly applies force to the victim sufficient to inflict, or contribute to the infliction of, great bodily harm.” (People v. Modiri (2006) 39 Cal.4th 481, 486.) Thus, a “defendant need not be the sole or definite cause of a specific injury.” (Ibid.)
In closing argument, counsel for McFall argued that others beat up Bentley, and specifically that Houston was the one who knocked Bentley unconscious. McFall argued that because other people were involved, this cast doubt on whether he was the one to personally inflict great bodily injury. After hearing McFall’s argument, the prosecutor requested that the trial court add the standard group assault instruction to the instruction to the jury pursuant to section 12022.7. McFall objected, but the trial court gave the instruction.
Because the jury was instructed before closing arguments, the trial court told the jury it had “neglected” to read part of the instruction. It then reread the entire instruction concerning the enhancement for personally inflicting great bodily injury, adding an instruction about the personal infliction of great bodily injury where the victim was assaulted by more than one person. The entire instruction was as follows.
“If you find defendant Dante McFall guilty of the crimes charged in Counts 2 or 3, you must then decide whether for each crime the People have proved the additional allegation that the defendant inflicted great bodily injury to someone who was 70 years of age or older pursuant to Penal Code Section 12022.7(c).
You must decide whether the People have proved this allegation for each crime, and return a separate finding for each crime.
To prove this allegation, the People must prove that one, the defendant personally inflicted great bodily injury on Frederick Bentley during the commission of the crime, and two, at that time Frederick Bentley was 70 years of age or older.
Great Bodily injury means significant or substantial physical harm. It is an injury that is greater than minor or moderate harm.
If you conclude that more than one person assaulted Frederick Bentley, and you cannot decide which person caused which injury, you may, but are not required to, conclude that the defendant personally inflicted great bodily injury on Frederick Bentley.
If the People have proved [that one,] two or more people acting at the same time assaulted Frederick Bentley, and inflicted great bodily injury on Frederick Bentley. Two, the defendant Dante McFall personally used physical force on Frederick Bentley during the group assault. [¶] And three, the amount or type of physical force the defendant used on Frederick Bentley was enough that i[t] alone could have caused Frederick Bentley to suffer great bodily injury.”
After this instruction, the defendants were given the opportunity to address the instruction. McFall’s counsel admitted that he previously “misspoke,” when he claimed that the jury would have to find McFall personally inflicted great bodily injury if there was a group attack. Counsel explained McFall could be liable without personally inflicting the blow of great bodily injury if he personally landed a blow, but it was not the exact blow that caused great bodily injury. The prosecutor never addressed the amended jury instruction, never changed the prosecution’s theory of the case, and never argued that more than one person assaulted Bentley.
McFall’s argument on appeal is not that the instruction was incorrect, but that he was deprived of due process and the effective assistance of counsel because his entire defense strategy was premised on the belief that if he could disprove he necessarily inflicted great bodily injury, he could disprove the personal infliction enhancement. He argues the prosecution should not have been allowed change to a theory it never noticed and never litigated.
Initially, we reject McFall’s claim that the prosecution changed its theory of the case at the end of trial. It is clear the prosecution asserted throughout the trial that McFall alone was the one who assaulted Bentley. The prosecutor merely asked that the trial court correctly instruct the jury on the law after defense counsel incorrectly informed the jury McFall could not be guilty of personally inflicting the blow resulting in great bodily injury if such blow was inflicted by one of the other attackers.
Defendant cites Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 692], which held that a defendant may be deprived of counsel by actual ineffectiveness, i.e., where counsel fails to render adequate assistance, or constructive ineffectiveness, where the trial court “interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.” Defendant argues that the trial court’s action in instructing on group assault constituted the latter. We disagree.
The trial court’s efforts to correctly instruct on the legal theories of the case do not amount to an interference with defense counsel’s ability to make independent decisions about the conduct of the case. The cases cited by McFall holding a trial court’s interference may result in ineffective assistance of counsel all are based on circumstances in which the trial court’s ruling actually prevented defense counsel from representing the defendant during a critical part of the trial or prevented counsel from independently deciding how to conduct the defense. (See Geders v. United States (1976) 425 U.S. 80, 81 [47 L.Ed.2d 592, 595] (trial court’s order directing defendant not to consult with his counsel during a regular overnight recess deprived him of assistance of counsel); Herring v. New York (1975) 422 U.S. 853 [45 L.Ed.2d 593] (statute allowing trial court to deny counsel opportunity to make closing argument denied defendant assistance of counsel); Brooks v. Tennessee (1972) 406 U.S. 605, 612 [32 L.Ed.2d 358, 363] (statute requiring defendant to testify first, if at all, was violation of privilege against self-incrimination and violation of due process because it interfered with defense counsel’s ability to decide whether to call defendant as a witness).)
McFall also cites a number of federal cases that are inapplicable under the circumstances here. Several of the cases he cites (e.g., United States v. Gaskins (9th Circ. 1988) 849 F.2d 454, 455; United States v. Harvill (9th Circ. 1974) 501 F.2d 295, 296; Wright v. United States (9th Circ. 1964) 339 F.2d 578, 579) were decided on a violation of Rule 30 of the Rules of Federal Criminal Procedure, and do not deal with a Sixth Amendment violation.
Rule 30 provides that the trial court must inform the parties before closing arguments how it intends to rule on requested jury instructions.
In Sheppard v. Rees (9th Circ. 1990) 909 F.2d 1234, the Ninth Circuit held that the government engaged in a pattern of conduct that affirmatively misled the defendant and denied him an effective opportunity to prepare a defense when the prosecutor charged the defendant with premeditated murder, but after all the evidence was taken and the jury instructions had been settled, the prosecutor requested felony-murder and robbery instructions, even though no robbery had ever been charged. (Id. at p. 1235.) After the trial court gave the felony-murder instruction, the prosecutor argued a felony-murder theory to the jury. (Id. at p. 1236.)
There was no such pattern of government conduct to mislead McFall. The prosecution’s theory of the case never changed. The prosecution always maintained that McFall alone beat up Bentley. Only after McFall’s counsel made an argument contrary to the law did the prosecutor request the court more fully instruct the jury in order to correct any misperception defense counsel had created. Neither the court nor the prosecutor forced McFall’s counsel to make a legally untenable argument to the jury. In no way did the court or the prosecutor interfere with defense counsel’s ability to make independent decisions about how to conduct the defense. Accordingly, there was no Sixth Amendment violation.
B. Unanimity Instruction
A unanimity instruction must be given if the evidence shows more than one criminal act was committed that could constitute the charged offense, and the prosecution does not rely on any single act. (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) McFall argues the robbery conviction could have been based upon either the evidence defendants attempted to take Bentley’s truck, or upon evidence they attempted to take his money. Thus, he argues, the trial court was required to give a unanimity instruction. We disagree.
To the extent George and McFall were attempting to take both the truck and the money when they went back to Bentley’s vehicle a second time and McFall began beating Bentley, no unanimity instruction was required because the acts were so closely connected they formed a part of one transaction and there was no reasonable basis for the jury to distinguish between them. (People v. Curry (2007) 158 Cal.App.4th 766, 782; People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
If McFall’s argument assumes George’s earlier attempt to take the truck was the first robbery attempt, there was no duty to give a unanimity instruction because the second attempt is the only one on which the jury could have based a robbery conviction.
We recognize that the trial court instructed the jury that attempted unlawful taking or driving a vehicle is a lesser offense of robbery. Even though we disagree with this instruction, the fact that it was given did not amount to an acknowledgment that either defendant could be found guilty of robbery based upon the evidence of George’s first attempt to take the truck.
A conviction for robbery requires a finding that force or fear was used to take the victim’s property. (§ 211; People v. Waidla, supra, 22 Cal.4th at p. 737.) All of the witnesses who testified that there were two separate attempts to steal from Bentley agreed there was no force or fear used during the first attempt. All testified that the first time George went to the truck, he simply looked inside, then walked away. Thus, no reasonable juror could have believed the first attempt to take the truck constituted a robbery.
Bentley testified to only one attempt, and that was the one involving two perpetrators, one who talked to him, and one who hit him from behind.
“It is well-established that a trial court is not obligated to give an instruction if the evidence presented at trial is such as to preclude a reasonable jury from finding the instruction applicable. [Citation.] This principle applies to the trial court's obligations in giving both requested and sua sponte instructions [citation] and is implicitly based on the concern that the giving of unnecessary instructions -- even if abstractly correct -- increases the potential for jury confusion.... [¶] Applying this principle, numerous cases have concluded that the failure to give [a unanimity instruction] does not require reversal unless ‘the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.’... [¶]... [W]e think it preferable to treat the instruction as unnecessary-and hence the failure to instruct is not error-unless there is evidence based on which reasonable jurors could disagree as to which act the defendant committed.” (People v. Schultz (1987) 192 Cal.App.3d 535, 539-540.)
No reasonable juror could have based a conviction for attempted robbery on the first attempt by George to take the truck because there was no evidence from any of the witnesses who testified as to the first attempt, that George used force or fear to attempt to take the truck.
C. Sentencing
Citing Apprendi, supra, Cunningham, supra, and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], McFall argues the trial court erred in sentencing him to the upper term of four years for the elder abuse count because the upper term was based upon a finding of fact not made by the jury.
The trial court sentenced McFall to the upper term for elder abuse, after making the following finding:
“I’m going to consider... that [McFall] was convicted beyond a reasonable doubt of attempted robbery and that is a factor that is not included in the Count Three, 368(b)(1). I’m also going to consider not only the force that was used in this offense but the viciousness with which [McFall] attacked Mr. Bentley for no reason.... [¶] But I’m going to find that the attempted robbery is an [aggravating] factor here and that it outweighs the mitigating factor of [McFall’s] youth, and I’m going to impose the upper term in Count Three.”
The existence of a single aggravating factor is legally sufficient to make a defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 813.) An aggravating factor is legally sufficient if it has been found by a jury or admitted by the defendant. (Id. at p. 816; Blakley, supra, 542 U.S. at p. 303 [at p. 413].)
Here, the aggravating factor relied on by the trial court was the attempted robbery McFall committed in conjunction with the elder abuse. The fact of the robbery was found true by the jury. Under these circumstances, the trial court’s imposition of the upper term did not violate McFall’s Sixth Amendment right to a jury trial.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE , J., CANTIL-SAKAUYE , J.