Opinion
H027609
5-25-2007
THE PEOPLE, Plaintiff and Respondent, v. ERIC LOVELLE HOWARD, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant of assault by means of force likely to produce great bodily injury and acquitted him of making criminal threats. (Pen. Code §§ 245, subd. (a)(91), 422.) Defendant admitted that he had suffered three prior "strike" convictions. (§§ 667, subds. (b)-(i)/1170.12, subd. (2).) The court struck two of the three prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). It imposed the aggravated term of four years, doubled pursuant to the Three Strike law, for the stated reasons that defendants prior convictions were numerous, he had served four prison terms and his past performance on parole was unsatisfactory. On appeal, defendant argued that the trial court committed instructional and evidentiary error, trial counsel rendered ineffective assistance and that his sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely). While defendants appeal was pending, our Supreme Court decided in People v. Black (2005) 35 Cal.4th 1238 (Black) "that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial." (Id. at p. 1244.) Bound by that determination, we affirmed. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Unless otherwise indicated, all further statutory references are to the Penal Code.
Our Supreme Court denied defendants petition for review, and he petitioned for certiorari in the United States Supreme Court. On January 22, 2007, the United States Supreme Court decided in Cunningham v. California (2007) 549 U.S. ___ (Cunningham) that Californias sentencing scheme violated the federal Constitution, disapproving Black. On February 20, 2007, the United States Supreme Court granted defendants petition for certiorari, vacated this courts judgment and remanded the cause to our court for further consideration in light of Cunningham. (Howard v. California (2007) ___ U.S. ___ .) Upon reconsideration, we conclude that Cunningham does not require resentencing in this case. We therefore affirm the judgment.
On February 20, 2007 the United States Supreme Court also granted Kevin Blacks petition for certiorari, vacated the judgment in People v. Black, supra, 35 Cal.4th 1238, and remanded the cause to the California Supreme Court for further consideration in light of Cunningham. (Black v. California (2007) ___ U.S ___ .)
Our discussion of the other claims raised by defendant is identical to our original opinion in this case. We discuss those claims again because our earlier opinion was vacated, and not because we have reconsidered those claims.
STATEMENT OF FACTS
In August 2003, defendant lived in a five bedroom house in San Jose with Mark Lechuga, who is blind and unable to walk, Arthur Lechuga, who is Marks brother and primary caretaker, Arthurs children, age two and five, and several other people.
On the morning of August 7, 2003, Mark Lechuga was in his room and heard defendants loud and angry voice berating his brother Arthur for leaving a mess in the kitchen. Arthur had prepared breakfast for himself and Mark and had just sat down to eat it. When Arthur took the dishes into the kitchen, defendant continued to yell at him about always leaving a mess in the kitchen. Then Mark heard the sounds of a fight: "boom, boom, boom," and "smash, smash, smash." Mark could not say who started it or who was being hit. Then he heard his brother say, "Stop it. You are hurting me. Stop it. Stop it." When the noise of slamming and pounding and his brother pleading continued and moved into the living room, Mark dialed 911.
When asked by the prosecutor if he had any fears about testifying, Mark replied, "I have a fear that as a result of testifying today that myself, my brother, and his family would be harmed."
Arthur testified that defendant became upset about the messy condition of the kitchen. Arthur did not realize how upset defendant was; he thought defendant was joking, and so he joked back. However, instead of defusing the situation, Arthurs joking only made defendant madder.
Arthur professed not to remember anything about what happened next. Specifically, he did not remember defendant slapping and pushing him. After reviewing his preliminary hearing testimony, he said he thought he testified the defendant slapped and pushed him. He did remember that "we both fell into the wall and had to fix it." Arthur remembered "something about" and could "visualize" the defendant grabbing him around the neck. He could "barely visualize" the defendant pinning him against the wall while grabbing him by the neck. He also stated flatly: "I dont remember being pinned up." He also remembered defendant saying "Im going to kill you." On cross-examination, however, he testified defendant did not threaten to kill him.
Arthur allowed that he was sure he must have had trouble breathing when grabbed around the neck, but he did not remember saying so at the preliminary hearing or "to anybody." He agreed that the defendant threw him around the kitchen, but he didnt think he felt "like a rag doll." They were struggling, wrestling and fighting for some minutes and Arthur "was doing a lot of blocking at that point." Then Arthur hit the defendant and they both fell onto the wall, putting a hole in it. Arthur hit defendant once only, on the face, and he did it reluctantly, and probably after the defendant was choking him.
On direct examination, Arthur "absolutely" denied throwing the first punch or even pushing defendant or slapping him. On cross-examination, he was asked, "Do you recall testifying [at the preliminary hearing that] it was possible that you started the physical altercation?" He responded: "You know, its kind of possible. It is rather possible because, like I said, I thought he was joking. I was joking back. I didnt know he was serious. ... I think it made him madder."
Arthur lost control of his bowels and defecated in his pajamas. When defendant had his hands around Arthurs neck, Arthur felt as if he was going to pass out.
Arthur was shown several pictures of himself taken on August 7. He agreed that his neck probably did not look the way it did in the picture before defendant put his hands around it, but he suggested the wounds on his back in the pictures were "old" and related to a tumor that had been removed or to a birth defect. He doubted the scratches on his chest were there before his altercation with the defendant and agreed the cut on his ankle was fresh at the time the photo was taken.
Arthur did not want to press charges, or testify, or get defendant in any trouble. He had not shown up the first day the case was scheduled for trial, and in fact had to spend "120 thousand hours" in jail for not showing up.
Arthur would neither admit nor deny that he told the prosecutor, on the day he was released from jail, that if he testified no one would protect him or assure his safety in his own home. He said, "I dont think I put it in those words." He explained that he "was concerned because [he] was in jail." Also, he was solely responsible for his two children, one of whom was "a little bit retarded," and his brother, and "[n]obody was looking out for Arthurs best interest." He testified: "Im still threatened. Every time Im away from the house things happen. Theres always some crisis going on in my house." When asked by the prosecutor, "Did you state to me on Friday afternoon that if you testified, you would be afraid of the defendants friends and family," Arthur responded: "Thats possible. Im still concerned, but that doesnt mean, well, you think hes like going to get that guy. Hes not like that."
Santa Clara County deputy sheriff Henry Rocha testified that the previous week he brought Arthur into court and overheard a conversation between Arthur and the prosecutor in which "Mr. Lechuga, stated that if he testified, the defendant had a friend who would put him, now Im quoting, `in a world of hurt. " Arthur also said he was scared of retaliation and scared for his own safety and that of his family. Arthur never said, however, that defendants family or friends had threatened him.
San Jose Police Officer Fernando Pedriera testified that he went to the Lechuga brothers residence in response to a 911 call. When he arrived, defendant was sweeping the kitchen-living room area. He was not wearing a shirt and he was perspiring. Officer Pedriera entered a bedroom where the Lechuga brothers were sitting, and Arthur closed the door. Arthur whispered that defendant was trying to kill him. Arthur told the officer that an altercation between him and the defendant started over a mess in the kitchen and the defendant at first slapped and pushed him around, and then grabbed him around the neck. With his hands around Arthurs neck, defendant pushed Arthur against the wall and screamed he was going to kill Arthur. Arthur broke away and ran into the living room, but the defendant caught him and started throwing him around like a rag doll. Arthur lost control of his bowels and felt as if he was on the verge of passing out. Defendant let go, and Arthur tried to go to the bathroom to clean himself up, but defendant pursued him there. Feeling that defendant was going to trap him in the bathroom and continue fighting with him, Arthur went back into the living room, where the fight continued until one of the roommates came out and broke it up. When Officer Pedriera asked if Arthur wanted to press charges, he said that he wanted to, but he was scared of the defendant.
Over defendants hearsay objection, Officer Pedrieras testimony about Arthurs statements to him was admitted as a series of prior inconsistent statements.
Pedriera and his partner took photos of Arthur, of defendant and of a hole in the wall. Defendant had no injuries. Arthur had markings on his throat, several abrasions and scratches on his back, and some slight scratches on his torso, chest and shoulder area, and a small cut or abrasion on his left ankle. The hole was approximately one and one half feet by two feet in width. When Pedriera took defendant into custody, defendant spontaneously stated: " `I made a mistake. Please dont take me to jail. " Defendant did not testify.
APPELLATE CONTENTIONS
Defendant contends the trial court eviscerated his self-defense claim when it instructed the jury in terms of CALJIC 5.30 and erred prejudicially when it admitted, over a hearsay objection, prosecution evidence that the complaining witness felt threatened about testifying. He also complains that defense counsel was ineffective for failing to object to the "threat" evidence as more prejudicial than probative. (Evid. Code § 352.) Finally, he argues that imposition of the aggravated term of four years for assault, in reliance upon aggravating factors that had not been found true by the jury, violates Blakely, supra, 542 U.S. 296.
DISCUSSION
1. CALJIC 5.30
As given in this case, CALJIC 5.30 provided: "It is lawful for a person who is being assaulted to defend himself from attack, if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances to be necessary to prevent the injury which appears to be imminent." Relying on People v. Myers (1998) 61 Cal.App.4th 328 (Myers), defendant asserts that CALJIC 5.30 is "a misstatement of the law" because it says that self-defense is available only to a person who believes he is at risk of "bodily injury." He claims the emphasis on bodily injury eviscerated his defense that he reacted in self-defense against an unlawful touching by Arthur, such as a poke, a push, or a punch in the face, which did not rise to the level of bodily injury.
In Myers, the appellate court held it was error to refuse a modification of CALJIC 5.30, or give a separate instruction, which would have informed the jury that defendant was entitled to resist any wrongful application of force, even one which did not pose a threat of bodily injury, and "even although only the feelings of such person are injured by the act." (Myers, supra, 61 Cal.App.4th at p. 335, citations and quotation marks omitted.) The factual predicate for the instruction was the defendants testimony that the victim began poking him in the chest while berating him, and the defendant pushed him away. (Id. at p. 332.) The trial court not only refused the requested instruction but also limited defense counsels argument to a self-defense theory consistent with CALJIC 5.30.
We see nothing in Myers which suggests that, in a proper case, and as a general rule, CALJIC 5.30 incorrectly states the law. Furthermore, as defendant implicitly admits in his reply brief, numerous cases have accepted as correct the general principle that self-defense presupposes the existence of the threat of bodily harm. (See § 240; Myers, supra, 61 Cal.App.4th at p. 335 & fn. 8; People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.)
So far as the record in this case shows, however, defendant did not object to CALJIC 5.30 or request a Myers modification of it. Defendant does not contend otherwise. Thus, his contention is essentially that the trial court had a sua sponte duty to modify CALJIC 5.30 in accordance with Myers. For the following reasons, we disagree.
"The court has a sua sponte duty to instruct on defenses when `"it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case." [Citation.] Yet this duty is limited: `the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. [Citation.] Thus, the court is required to instruct sua sponte only on general principles which are necessary for the jurys understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction. " (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) Put differently, "Omniscience is not required of our trial courts." (People v. Wade (1959) 53 Cal.2d 322, 335, overruled on another point in People v. Carpenter (1997) 15 Cal.4th 312, 381.)
Here, the trial court had no basis for intuiting that a Myers instruction was required. In the first place, there was no factual predicate for it. While Arthur prevaricated throughout most of his testimony, he was very clear that he "absolutely" did not throw the first punch, or initiate the fight by pushing defendant or slapping him. We disagree with defendants interpretation of Arthurs testimony, on cross-examination, that it was "possible" he started the altercation by responding to defendants anger with jokes, which only "made him madder." Arthur used the same phrase ("made him madder") on direct examination. In our view, in both instances Arthur indicated that his jokes served to stoke defendants anger, not that he initiated the use of force of against defendant.
Moreover, in closing argument, defense counsel did not point to trial evidence suggesting that Arthur had initiated the use of force. Instead, she posited a possible motive for Arthur to attack defendant and fashioned a factual scenario for which there was no evidence, and argued that the prosecution had not sustained its burden of disproving that defendant had acted in self-defense. Defendant is correct, of course, that the arguments of counsel are not evidence, and that "[t]ruth may lie neither with the defendants protestations of innocence nor with the prosecutions assertion that the defendant is guilty of the offense charged, but at a point between these two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged." (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1018.) However, the issue here is whether the trial court had a sua sponte duty to divine that "point between these two extremes" in the absence of evidence or even argument to provide a clue that defendant was relying on a Myers defense. We hold that the trial court had no sua sponte duty to modify CALJIC 5.30 in accordance with Myers on the strength of defense counsels surmise, unsupported by any evidence, that Arthur "maybe pushed [defendant], and then the fight started." In our view, the fact that the court gave standard CALJIC instructions on self-defense based on Arthurs admission that he did punch defendant in the face — a use of force that involved bodily harm — does not mean that the court was required to modify the standard CALJIC instructions on its own. On the contrary, the instruction defendant now says should have been given is more properly a pinpoint instruction on the defendants theory of the case which must be requested. "`While a court may well have a duty to give a "pinpoint" instruction relating such evidence to the elements of the offense and to the jurys duty to acquit if the evidence produces a reasonable doubt, such "pinpoint" instructions are not required to be given sua sponte and must be given only upon request." (People v. Saille (1991) 54 Cal.3d 1103, 1117-1118 [instruction relating intoxication to mental state is pinpoint instruction that must be requested].) Here, no such instruction was requested. The court did not have a sua sponte duty to give the instruction defendant now requests. No error appears.
For example, defense counsel argued: "Bottom line, [the prosecutor] has to prove that Mr. Howard started the fight. Again, its not against the law to start a fight. Its not against the law to win a fight. Its not Mr. Howards burden of proof to prove he was acting in self-defense." "You know what happened? Arthur went in [the kitchen], challenged Mr. Howard, because Mr. Howard was telling him what to do in his house. We dont know that. We just have reason. That Arthur took a swing, hit Mr. Howard, maybe pushed him, and then the fight started." (Italics added.)
2. Threat Evidence
Defendant argues that the trial court erred by overruling his hearsay objection and allowing, as a prior inconsistent statement, Deputy Sheriff Rochas testimony that he overheard Arthur tell the prosecutor that "if he testified, the defendant had a friend who would put him ... `in a world of hurt. " Defendant contends that Arthurs prior statement was inadmissible because it was not, in fact, inconsistent with his trial testimony, insofar as he admitted he believed he would be in a world of hurt if he testified. We disagree.
On direct examination, the prosecutor asked Arthur a series of questions starting with whether he felt comfortable "testifying here today" and culminating with the question, "Did you tell us the other day in court that if you testified, you would be in a world of hurt?" "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness prior statement...." (People v. Ervin (2000) 22 Cal.4th 48, 84-85, internal quotation marks omitted.) To paraphrase: "As long as there is a reasonable basis in the record for concluding that the witnesss ... statements are evasive and untruthful, admission of his or her prior statements is proper." (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.) Here, the record provides a reasonable basis for the trial courts implied finding that Arthurs answers were contradictory and evasive. No error appears.
The following exchange occurred:
"[Q:] With respect to your testifying here today, do you feel comfortable testifying here today?
[A:] How do you — you mean? Physically? Mentally? Spiritually?
[Q:] Do you want to be here testifying?
[A:] No, not necessarily. If I didnt have to, I wouldnt have showed up.
[Q:] Is there a reason why you dont want to be testifying here today?
[A:] Im not sure where you are going with that question. I just dont think that he needs to be in trouble.
[Q:] You feel hes already served enough time?
[A:] Long time ago.
[Q:] And you dont want to get him in trouble?
[A:] Absolutely, no.
[Q:] Are you fearful for your safety, Mr. Lechuga?
[A:] Am I fearful for my safety?
[Q:] Yes, if you testify here today.
[A:] Well, Im not going to get hurt.
[Q:] So you are not fearful for your safety?
[A:] Oh, Im thinking of the same — well, Im nervous, Im not scared. Its a concern.
[Q:] Are you concerned that if you testify here today some of the defendants friends or relatives could somehow harm you?
[A:] Oh, that can happen anytime, anywhere, sure.
[Q:] So are you concerned about that?
[A:] Sure, but Im not scared about it or worried about it. I dont think its going to happen.
[Q:] Did you tell us the other day in court that if you testified, you would be in a world of hurt?
[A:] I mentioned that in a manner of speaking. I dont think how [sic] I said it, I was in a bad way at that time. I did mention it, sure."
Next, defendant argues that the trial court erred in admitting evidence that Mark and Arthur Lechuga were fearful of retaliation if they testified, because there was no evidence that the threat of retaliation came from defendant. (People v. Warren (1988) 45 Cal.3d 471, 481.) We agree there was no evidence that defendant authorized any retaliation. Indeed, as defendant notes, no instruction was given permitting the jury to even infer that defendant instigated the retaliation feared by the witnesses, and no one argued that defendant was behind any threat of retaliation. However, as defendant acknowledges, evidence that the witnesses were reluctant to testify and feared retaliation was relevant to their credibility. (Evid. Code § 780; People v. Green (1980) 27 Cal.3d 1, 19-20.) It was also relevant to prove the sustained fear element of the section 422 charge of which defendant was acquitted. These two purposes did not depend on a showing that defendant had threatened to retaliate against the witnesses or put up others to retaliate on his behalf. No error in the admission of this evidence appears.
Defense counsel objected on relevance grounds to Marks testimony. He did not object to Arthurs testimony on this ground, but we find that defense counsel was entitled to conclude that, in light of the courts earlier ruling with respect to Mark, such an objection would have been futile.
Finally, defendant argues that counsel was ineffective for failing to object to the evidence that Mark and Arthur feared retaliation if they testified on the additional grounds that the evidence was more prejudicial than probative. We disagree. "To prevail on a claim of ineffective assistance of counsel, the defendant must show counsels performance fell below a standard of reasonable competence, and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.)
Here, an objection pursuant to Evidence Code section 352 would not have been well taken. The evidence was necessary to prove an element of one of the charged crimes, a violation of section 422, and it was highly probative to show why both Mark and Arthur were reluctant to testify and to explain why Arthur, in particular, was so evasive in his testimony. On the other hand, the prejudice to defendant was minimal, since there was no evidence, instruction or argument to suggest that defendant had directly or indirectly threatened the Lechuga brothers. Defendant has not demonstrated that defense counsels performance here fell below a standard of reasonable competence. Ineffective assistance of counsel has not been shown.
3. Asserted Blakely Error
Defendant asserts that the trial court committed error under Blakely, when it sentenced him to the upper term for the assault conviction, based on aggravating factors that were never found by the jury. The Attorney General counters that (1) defendant has forfeited his Blakely claim by failing to assert it in the trial court; (2) no Blakely error occurred.
No Forfeiture
Before reaching the merits of defendants claim, we briefly address and reject the Attorney Generals assertion that defendant has forfeited his right to appellate review of his constitutional challenge to his sentence. In our view, a claim of Blakely error is not waived or forfeited by trial counsels failure to make a timely objection pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466, before the United States Supreme Court announced its decision in Blakely. The decision in Blakely was an extension of the Apprendi rationale into a new area. Defendant cannot have forfeited or waived a legal argument that was not recognized at the time of his trial.
Blakely Error
The information in defendants case alleged six prior convictions within the meaning of the Three Strikes law: one Santa Clara County conviction for assault with a deadly weapon (#169902), two Santa Clara County convictions for first degree burglary (#138617), and three Florida convictions for burglary of a dwelling (#88-945-CF, #85-613-CF, & 88-907-CF). After the jury returned its verdicts, the trial court inquired about the scheduling for trial on the prior convictions. The prosecutor moved to dismiss the three Florida prior convictions, and the court granted the motion. Defendant had previously waived his right to a jury trial on the prior convictions; he now waived his right to a court trial, to confront and cross-examine witnesses, to present evidence, to testify and to remain silent, and admitted the three Santa Clara county convictions.
Prior to sentencing, defendant moved for dismissal of his three Santa Clara County convictions for purposes of the Three Strikes law, pursuant to Romero, supra, 13 Cal.4th 497. The court granted the motion in part, dismissing the two prior convictions for first degree burglary, and making defendant eligible for a determinate sentence, doubled under the Three Strikes law.
The trial court gave the following reasons for its choice of the aggravated term in this case: "[T]he defendants prior convictions are numerous. He has been to prison at least four times and his past performance on parole was not satisfactory, as evidenced by his two prior violations of parole, and those are the reasons for the aggravated terms." The probation report did not list any circumstances in mitigation of the sentence and the trial court did not mention any with respect to its selection of a determinate term.
In connection with defendants motion to strike prior convictions pursuant to Romero, supra, 13 Cal.4th 497, the court relied on defendants "concerted effort to conquer [his] addiction" to drugs, and his success in staying "free of any new convictions for four years since his release from prison on a violation of parole" as the reasons for finding "that the defendant falls outside the spirit of the three strikes law in part."
In Apprendi, the United States Supreme Court held that the federal Constitutions notice and jury trial guarantees require 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 re-affirmed and clarified Apprendi, explaining that "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. ... 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." (Blakely, supra, 542 U.S. at pp. 303-304.) Finally, in Cunningham v. California (2007) 549 U.S. ___ (Cunningham), the United States Supreme Court held that Californias Determinate Sentencing Law (DSL) violates defendants Sixth Amendment jury trial right "[b]ecause the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence...." (Cunningham, 127 S.Ct. at p. 870.) All three opinions recognize that Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), created an exception to the rule requiring jury trials for the fact of a prior conviction. (Cunningham, 127 S.Ct. at p. 860; Blakely, at p. 301; Apprendi, at pp. 488, 490.) Defendant argues that the exception for prior convictions does not apply in this case because all of the factors cited by the court — the number of prior convictions, the service of four prior prison terms and unsatisfactory performance on parole — involve questions of fact beyond the mere fact of a prior conviction.
However, before deciding whether the courts reasons for imposing the upper term violated Cunninghams interpretation of the Sixth Amendment, we must first determine the statutory maximum sentence the court could have imposed without any additional factual findings under Blakely. Defendant contends that the " `statutory maximum in `strikes cases should be the maximum sentence available after the court considers and rules upon any Romero motion." Defendant cites no authority for this interpretation of Blakely either in his opening brief, reply brief, or petition for review in the California Supreme Court.
As the court stated in Blakely, "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." (Blakely, supra, 542 U.S. at p. 303.) Moreover, Blakely does not require a jury determination of the fact of a prior conviction. (Id. at pp. 302, fn. 5 & 303.) Here, the information gave defendant notice that his prior convictions exposed him to an indeterminate life sentence under the Three Strikes law if he were to be convicted of any of the offenses charged in the same information. The jury convicted him of one of the two charged criminal offenses, and defendant admitted three of the prior convictions which exposed him to a Three Strikes sentence. In our view, the statutory maximum sentence to which the jurys verdict together with defendants admissions exposed defendant was life in prison pursuant to the Three Strikes law. Blakely is not violated where, as here, there was no judicial fact-finding required to reach the statutory maximum sentence of life in prison.
The courts post-information, post-trial and post-admission decision to strike two of defendants prior convictions, and thus make him eligible for a determinate sentence less than life in prison, does not change the statutory maximum sentence permitted by the jurys verdict and defendants admissions. In our view, life in prison remained the defendants statutory maximum sentence for constitutional purposes under Blakely; the eight-year upper term sentence which the court ultimately imposed was an act of leniency that reduced the defendants sentence from the maximum sentence available to the court. Since the upper term, which was selected by the court and doubled pursuant to the Three Strikes law, did not exceed the statutory maximum of life in prison, the constitutional limits on sentencing set by Blakely and Cunningham were not transgressed.
Our conclusion that the act of striking the prior convictions did not wipe out defendants convictions for the purpose of computing defendants statutory maximum sentence under Blakely is strengthened by In re Varnell (2003) 30 Cal.4th 1132 (Varnell). In Varnell, our state Supreme Court reiterated: "As we have repeatedly emphasized, dismissal of a prior conviction allegation under section 1385 is not the equivalent of a determination that defendant did not in fact suffer the conviction. [Citations.] When a court strikes prior felony conviction allegations in this way, it does not wipe out such prior convictions or prevent them from being considered in connection with later convictions. [Citations.] Thus, while a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use. Hence, the trial courts dismissal of the `strike allegation in this case did not wipe out the fact of the prior conviction...." (Id. at p. 1138, fn. and internal quotation marks omitted.) As the court explained in People v. Garcia (1999) 20 Cal.4th 490, "a court might strike a prior conviction allegation in one context, but use it in another." (Id. at p. 496.)
Moreover, in Apprendi, supra, 530 U.S. at pages 481-482, after reviewing the history of the jury trial right at common law, the court cautioned that "nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case. ... [O]ur periodic recognition of judges broad discretion in sentencing ... has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature." The eight-year aggravated sentence imposed by the court below was within the range of sentencing options prescribed by the legislature, given the jurys verdicts and defendants admissions.
In short, the fact that the court struck two of the prior convictions to ameliorate the life sentence does not alter our calculation of the statutory maximum penalty. Thus, even if defendant is correct that the number of defendants convictions, or his service of four prison terms, or his performance on parole, are not encompassed by the Almendarez-Torres exception for prior convictions (but see People v. McGee (2006) 38 Cal.4th 682 ), nevertheless the court is entitled to consider additional facts not found by the jury as long as the resulting sentence is within the range established by the jurys findings and the defendants admissions. (Apprendi, supra, 530 U.S. at p. 494, fn. 19.) A sentence within the maximum allowed under the verdict and the facts admitted by the defendant does not violate Blakely. (United States v. Lucca (8th Cir. 2004) 377 F.3d 927, 934; United States v. Salvidar-Trujillo (6th Cir. 2004) 380 F.3d 274.)
Defendant admitted the facts that authorized the imposition of a maximum statutory life sentence under the Three Strikes law. Since his eight-year sentence did not exceed his maximum statutory sentence, we conclude that the sentence did not violate Blakely.
In light of our conclusion, we need not and do not decide whether the trial courts reliance on recidivistic factors here fell within or without the ambit of Almendarez-Torres.
CONCLUSION
The trial court had no sua sponte duty to modify CALJIC No. 5.30 in accordance with Myers, supra, 61 Cal.App.4th 328. The trial court did not err in overruling defendants hearsay objection to Deputy Rochas testimony about Arthurs prior inconsistent statement, or his relevance objection to evidence that the Lechuga brothers testified reluctantly and feared retaliation. Nor was trial counsel ineffective for failing to object to that evidence on Evidence Code section 352 grounds, since such an objection would not have been well taken. Finally, we find that defendants eight-year upper term sentence for aggravated assault did not violate Blakely.
DISPOSITION
The judgment is affirmed.
We Concur:
Bamattre-Manoukian, Acting P.J.
Mihara, J.