Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. BF115672A. John I. Kelly, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. Depaul, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J. and Wiseman, J.
STATEMENT OF THE CASE
On August 29, 2006, the Kern County District Attorney filed an information in superior court charging appellant as follows: count I—vehicular theft (Veh. Code, § 10851, subd. (a)) and count II—receiving a stolen vehicle (Pen. Code, § 496d). As to each count, the district attorney specially alleged appellant committed a felony while released from custody pending trial or final judgment of an earlier offense (Pen. Code, § 12022.1), had sustained a prior strike conviction (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
On September 6, 2006, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On October 20, 2006, appellant declined a plea bargain entailing a four-year term of imprisonment.
On December 5, 2006, the court dismissed the Penal Code section 12022.1 allegations because the earlier offense was reduced to a misdemeanor. On the same date, the court bifurcated trial of the remaining special allegations and jury trial commenced.
On December 8, 2006, the jury returned guilty verdicts on both substantive counts. Having previously waived jury trial of the bifurcated portion of the information, appellant admitted the truth of the remaining special allegations.
On January 16, 2007, appellant filed a sentencing statement in mitigation and requested dismissal of the prior prison term enhancement.
On January 19, 2007, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of seven years in state prison. The court imposed the doubled upper term of six years on count I and a consecutive term of one year on the related prior prison term allegation. The court imposed the upper term of six years on count II but stayed that term (Pen. Code, § 654). The court awarded 246 days of custody credits, ordered appellant to provide prints and bodily fluid samples (§ 296), imposed a $200 restitution fine (§ 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45). The court also ordered appellant to pay restitution to the victim of the vehicular theft.
On January 24, 2007, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Between 9:00 and 10:00 p.m. on August 8, 2006, Joshua Hubble drove his daughter’s friend home in his black 2005 GMC pickup truck. Hubble had played golf that day and his clubs and a number of pairs of golf gloves were inside the vehicle. When Hubble and the daughter’s friend’s arrived at her home on Golden Hawk Court, the friend’s father came outside and invited Hubble to see their new barbecue. The barbecue was located in the backyard. Hubble parked the truck in the driveway but left the engine running and doors unlocked because he planned to come right back. When Hubble returned less than 10 minutes later, the truck was gone.
Between 11:00 p.m. and midnight that same day, Judy Barnes was smoking a cigarette in the front yard of her home. She heard a truck “hauling up our street going 40, 50 miles an hour.” Barnes saw the truck enter a nearby cul-de-sac, slam on its brakes, turn around, and then stop. She saw a man get out of the truck and start to walk in the direction of her front yard. As the man walked by, Barnes looked at him but did not make direct eye contact because she was frightened. The man was an Hispanic male dressed in a gray tank top and denim jeans. He either had very short hair or a shaved head.
Approximately 40 minutes after seeing the man, Barnes was outside her home again and saw police near that same cul-de-sac. She approached them, told them what she had seen, and gave them the location of the truck. The officers had used the vehicle’s “OnStar” security system to locate the general location of the truck but they could not pinpoint its specific location.
At about the same time, Bakersfield Police Officer Bradley Carey saw appellant standing in front of R.J.’s Bar and Grill. Carey had been advised of the auto theft and responded to the area of the crime in his patrol vehicle. Appellant caught Carey’s attention because R.J.’s was located in the area of the truck theft and appellant was dressed in a gray top and blue jeans, had a shaven head, and stood about five feet seven inches tall. Carey approached appellant and asked him what he was doing in front of the bar and grill. Appellant was perspiring and appeared nervous. Carey noticed some white gloves hanging out of appellant’s back pocket. The gloves looked like the type used for golfing or exercise. Appellant told Officer Carey he used the gloves “for working out.”
Judy Barnes was unable to identify the first suspect stopped by police officers. When officers brought Judy Barnes to appellant’s location for another show-up, she said appellant looked like the suspect but she was not certain. She indicated that appellant was wearing the same clothing as that worn by the man who had been in the front of her house. Appellant was ultimately placed under arrest and Joshua Hubble identified two golf gloves as having been taken from his truck. Hubble said his style of play required left-handed gloves and both gloves identified by Hubble were of that variety.
When Hubble regained possession of his pickup truck, he noticed that someone had rummaged through the vehicle and the loose change he normally stored in the ashtray was missing. The following day, Hubble realized that someone had taken the camera he usually kept in the pickup truck.
Defense
Bakersfield Police Officer Gilbert Rodriguez processed the pickup truck for fingerprints and was able to lift certain latent prints from the door, frame, windows, mirrors, and door handle area. He placed the prints on a white card and submitted them to the police department. Destinie Wade, a technician with the Bakersfield Police Department Crime Laboratory, analyzed the prints and determined they did not match the fingerprints of appellant.
Cristina Espiritu, an investigator with the Kern County Public Defender’s Office, investigated the crime. She said the distance between the point where the truck was stolen and the point where it was recovered was .8 miles. Espiritu also said the distance between the point where the truck was recovered and the point where appellant was arrested was .9 miles.
Appellant’s brother, Ryan A. De La Huerta, testified appellant always worked out on gym equipment in the front yard and back yard of their family home. Ryan said his brother “[a]lways has gloves on” while working out and that appellant “has too many [types of exercise gloves] to describe.” Upon further examination, Ryan said his brother had 10-12 pairs of gloves, some of the gloves were white, and some had fingers on them and some did not. Ryan also said appellant “always had about maybe two pairs of gloves with him at a time. He always carried gloves with him.” Ryan said appellant always wore gloves during workouts “because it hurts your hands when you do it without gloves.” Ryan also said appellant could have grabbed two left-handed gloves “on accident.”
DISCUSSION
I.
SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT’S CONVICTION ON
COUNT I
Appellant contends dual convictions for auto theft (count I) and receiving the same stolen vehicle (count II) are prohibited because there is insufficient evidence to sustain the conviction on count I based upon posttheft driving.
In assessing a claim of insufficiency of the evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment. The court must determine whether the record discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ringo (2005) 134 Cal.App.4th 870, 880.) In order to succeed in a challenge on appeal to the sufficiency of the evidence, an appellant must establish that no rational jury could have concluded as it did. The rules of appellate review require us to evaluate the evidence in the light most favorable to the respondent and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (People v. Millwee (1998) 18 Cal.4th 96, 132; People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
We may not weigh the evidence or make findings of credibility, for these are within the province of the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must only decide whether substantial evidence exists to support the inference of guilt drawn by the trier of fact. Substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury’s conclusions. [Citations.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1161-1162.)
Count I of the information alleged:
“ON OR ABOUT AUGUST 8, 2006, KEVIN JOE DE LA HUERTA, DID WILLFULLY AND UNLAWFULLY DRIVE OR TAKE A CERTAIN VEHICLE, TO WIT: 2005 GMC PICK-UP TRUCK CALIFORNIA LICENSE #7UO2853, THEN AND THERE THE PERSONAL PROPERTY OF JOSHUA HUBBLE, WITHOUT THE CONSENT OF AND WITH INTENT TO DEPRIVE THE SAID OWNER OF TITLE TO OR POSSESSION OF SAID VEHICLE, IN VIOLATION OF CALIFORNIA VEHICLE CODE SECTION 10851(A), A FELONY.”
Count II of the information alleged:
“ON OR ABOUT AUGUST 8, 2006, KEVIN JOE DE LA HUERTA, DID WILLFULLY AND UNLAWFULLY BUY OR RECEIVE A MOTOR VEHICLE, TO WIT: 2005 GMC PICK-UP TRUCK CALIFORNIA LICENSE #7UO2853 THEN AND THERE THE PERSONAL PROPERTY OF JOSHUA HUBBLE, WHICH HAD BEEN STOLEN OR OBTAINED IN ANY MANNER CONSTITUTING THEFT OR EXTORTION, KNOWING THAT PROPERTY TO BE SO STOLEN OR OBTAINED, OR WHO CONCEALS, SELLS, WITHHOLDS, OR AIDS IN CONCEALING, SELLING OR WITHHOLDING SAID VEHICLE, KNOWING THE PROPERTY TO BE STOLEN, IN VIOLATION OF PENAL CODE SECTION 496D, A FELONY.”
Vehicle Code section 10851, subdivision (a) states in relevant part:
“Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense ....”
Penal Code section 496d, subdivision (a) states in relevant part:
“Every person who buys or receives any motor vehicle ... that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle … from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment ....”
Under Penal Code section 496d, the People must prove (1) the property was stolen; (2) defendant knew it was stolen; and (3) defendant had possession of it. The requisite possession may be actual or constructive, and need not be exclusive. In fact, physical possession is not required and it is sufficient if the defendant acquires a measure of control or dominion over the stolen property. However, mere presence near the stolen property in and of itself is insufficient evidence of possession to sustain a conviction for receiving stolen property. (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.)
The trial court instructed the jury in CALJIC No. 17.04 (receiving stolen property and Vehicle Code section 10851—one or two crimes committed) as follows:
“A defendant who is accused of the theft of property and of receiving the same property as stolen property cannot be convicted of both crimes. In this situation, the crimes are charged as ... alternatives. He may be found not guilty of both crimes or guilty of one and not guilty of the other.
“If you find that the defendant committed an act or acts constituting theft of property or receiving the same property as stolen property, you must then determine which of the crimes charged ... was committed.
“In order to find the defendant guilty, you must all agree as to the particular crime committed. And if you find the defendant guilty of one, you must find him not guilty of the other.
“The Court cannot accept any verdict ... of guilty to any lesser crime unless you unanimously find and return a signed verdict form that the defendant is not guilty as to the greater crime.
“The defendant is accused in Count 1 of violating Vehicle Code Section 10851(a), namely, the unlawful taking or driving of a vehicle. When a person unlawfully takes and drives away a vehicle with the intent to deprive permanently its owner of the possession of that vehicle the crime committed is a form of theft. However, a person who unlawfully drives a vehicle after the theft is complete with the required intent violates Vehicle Code Section 10851(a), but the crime committed is not theft.
“... [T]here is no prohibition against a person who engages in unlawful post-theft driving being found guilty both of receiving stolen property and a violation of Vehicle Code Section ... 10851(a).
“A theft of a vehicle is complete when the drive is no longer part of a continued journey away from the place of the theft or driving continues after the driver has eluded pursuers and reached a point of temporary safety.”
Appellant argues:
“[T]he only reasonable conclusion supported by this record is that appellant’s jury found him guilty of auto theft based on post-theft driving. The district attorney expressly argued that he could be found guilty of either taking or driving the truck and that ‘if you find unanimously that he simply drove the vehicle, then you can as well find him guilty of a 496(d), receiving stolen property.’ As noted, the jury was also correctly instructed ... with CALJIC 17.04 that appellant could not be found guilty of both taking the truck and receiving it as stolen property, but that such dual convictions were permitted if he ‘engage[d] in unlawful post-theft driving ...’ It must be presumed ‘the jurors followed th[ese] instruction.’ (People v. Smith (2007) 40 Cal.4[th] 483, 517.) In addition, the jurors’ questions as to whether ‘the omission of the word drive in the verdict form on count 1 superced[ed] the jury instruction or wording of the code’ and their further questions as to whether appellant could be found guilty of ‘driving (count 1) and be guilty of count 2’ and/or ‘guilty of taking (count 1)’ and ‘guilty of count 2’, amply demonstrates that the appellant’s jury understood the distinction between taking and driving and focused on whether appellant was guilty for simply driving the truck.
“However, contrary to this verdict, there is no reasonable, solid evidence of post-theft driving. The evidence shows only that Mr. Hubble’s truck was stolen between 9:00 and 10:00 p.m. and appellant was seen driving and then parking it between 11:00 p.m. and midnight that same evening. This ‘mere passage of time’, perhaps in this case as little as an hour, is clearly insufficient to establish a ‘complete divorcement’ between the taking and any post-theft driving. Indeed, given the short time that passed between the theft and Ms. Barnes’ observation of appellant driving and the fact that she made this observation less than a mile from where the truck was stolen, the only reasonable conclusion is that, whether appellant was alone or with a cohort, there is no evidence that he engaged in driving that was divorced from the taking of the truck.”
In People v. Garza (2005) 35 Cal.4th 866 (Garza), the Supreme Court explained the interplay between Penal Code section 496 and Vehicle Code section 10851:
We note the instant case entails a violation of Penal Code section 496d, a special form of receiving stolen property, as opposed to a violation of Penal Code section 496, a more general statute governing receiving stolen property. Despite this difference, both parties cite to Garza in support of their respective positions.
“Subdivision (a) of Penal Code section 496 (hereafter section 496(a)) defines the crime of receiving stolen property. It also provides that a person who has been convicted of the theft of property may not also be convicted of receiving the same property. This provision codifies a common law rule prohibiting separate convictions of the same person for stealing and receiving the same property. (People v. Allen (1999) 21 Cal.4th 846, 857 (Allen).)
“Subdivision (a) of Vehicle Code section 10851 (hereafter section 10851(a)), defines the crime of unlawful driving or taking of a vehicle. Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted under section 496(a) of receiving the same vehicle as stolen property. On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete (for convenience, we will refer to this as posttheft driving). Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction and does not preclude a conviction under section 496(a) for receiving the same vehicle as stolen property.” (Garza, supra, 35 Cal.4th at p. 871.)
In Garza, the Supreme Court focused on whether a conviction under Vehicle Code section 10851, subdivision (a) bars a conviction under Penal Code section 496, subdivision (a) for receiving the same vehicle as stolen property when (a) the evidence at trial adequately supported the Vehicle Code section 10851, subdivision (a) conviction on either a taking or a posttheft driving theory; (b) the prosecutor argued both the taking and the posttheft driving theories to the jury; (c) the instructions did not require the jury to choose between the theories; (d) the instructions did not explain the rule prohibiting convictions for stealing and receiving the same stolen property; and (e) the jury’s guilty verdict did not disclose which theory or theories the jurors accepted. (Garza, supra, 35 Cal.4th at p. 871.)
In addressing these various factors, the Supreme Court in Garza held a defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of Vehicle Code section 10851, subdivision (a). According to the Supreme Court, one appellate court had previously suggested that a taking is complete when the driving is no longer part of a continuous journey away from the locus of the theft. (People v. Strong (1994) 30 Cal.App.4th 366, 375.) The Supreme Court also suggested that a taking is complete when the taker reaches a place of public safety. The Supreme Court ultimately declined to decide the precise demarcation point of completion. Instead, the Supreme Court observed: “[O]nce a person who has stolen a car has passed that point, further driving of the vehicle is a separate violation of section 10851(a) that is properly regarded as a nontheft offense for purposes of the dual conviction prohibition of section 496(a).” (Garza, supra, 35 Cal.4th at pp. 880-881.)
In Garza, the defendant was found in the driver’s seat of a Lincoln Town Car in the middle of a strip mall parking lot. The key was in the ignition, the motor was running, and defendant exhibited signs of being under the influence of narcotics. The vehicle, part of a limousine rental fleet, had been stolen six days earlier. The investigating officer found no one else in the car and did not see anyone else in the area of the vehicle who might have driven it to the parking lot. The Supreme Court concluded the only reasonable inference was that the defendant committed the separate crime of driving the car to the parking lot long after the vehicular theft was complete. (Garza, supra, 35 Cal.4th at p. 882.)
In the instant case, the jury could reasonably infer that appellant stole Joshua Hubble’s pickup truck sometime between 9:00 and 10:00 p.m. on August 8, 2006, and parked it in Judy Barnes’s neighborhood sometime between 11:00 p.m. and midnight that same day. The jury could also reasonably conclude the distance between the point of theft and the point of abandonment was less than one mile, i.e., .8 of a mile. In view of these facts, appellant submits the “‘mere passage of time’” combined with abandonment of the vehicle in the general locus of the theft failed to establish that “he engaged in driving that was divorced from the taking of the truck.”
While that is one perspective of the evening, the jury—based on the sequence of events—could have reasonably concluded that appellant seized the vehicle, drove it a substantial time and distance from Golden Hawk Court or parked it at another location for a substantial period of time, and only then proceeded to drive to and leave it in the neighborhood of Judy Barnes. Thus, the mere fact the distance between the point of theft and point of abandonment was only .8 mile did not preclude the jury from finding a completed theft prior to the parking of the truck in the cul-de-sac of Barnes’s neighborhood.
As noted above, we may not weigh the evidence or make findings of credibility, for these are within the province of the jury. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) We must only decide whether substantial evidence exists to support the inference of guilt drawn by the trier of fact. Substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) In our view, the record contains sufficient circumstantial evidence to show that appellant completed the vehicular theft prior to driving to and abandoning Hubble’s pickup truck in the cul-de-sac and he was properly convicted of violating
Vehicle Code section 10851 and Penal Code section 496d.
II.
THE UPPER TERM OF IMPRISONMENT
In his opening brief, appellant initially contends the trial court violated his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process of law by imposing the upper term of imprisonment based upon impermissible judicial factfinding.
In sentencing appellant on January 19, 2007, the trial court stated in relevant part:
“There are no circumstances in mitigation.
The report of the probation officer indicated appellant’s prior performance on felony probation and parole was unsatisfactory in that he failed to comply with the terms and re-offended. At sentencing, defense counsel disputed the contents of the probation report and stated that his client had successfully completed parole. Counsel specifically noted that appellant was in custody on the date of the alleged parole violation. When the trial court sought clarification, the probation officer stated: “The parole one is correct. It was an error on our account.” When the trial court imposed sentence, defense counsel objected to the finding of no circumstances in mitigation. Counsel asserted: “Successful completion of probation is a factor in mitigation, and the fact that Probation states that he did not successfully complete parole is incorrect, and Probation does admit that. And so that should be stricken. That is not a factor in aggravation in this case.” The court advised defense counsel that his comments “will be reflected in the record.” Circumstances in mitigation include facts relating to the defendant. One such fact is that defendant’s prior performance on parole was satisfactory. (Cal. Rules of Court, rule 4.423(b)(6).) Nevertheless, sentencing courts have wide discretion in weighing aggravating and mitigating factors and may balance them against each other in qualitative as well as quantitative terms. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A single factor in aggravation suffices to support an upper term of imprisonment. (People v. Osband (1996) 13 Cal.4th 622, 730, distinguished on other grounds by People v. Lucero (2000) 23 Cal.4th 692, 714.)
“In aggravation, the Defendant’s prior convictions as an adult are numerous. The Defendant was on two grants of misdemeanor probation when the crime was committed.
“In addition, the Defendant’s prior performance on misdemeanor and felony probation and parole has been unsatisfactory in that he fails to comply. Those are the probation officer’s remarks, and the Court would adopt them along the lines of what I have previously stated here.”
In Blakely v. Washington (2004)542 U.S. 296 (Blakely), the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): “‘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.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (United States v. Booker (2005) 543 U.S. 220, 244.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on this state’s determinate sentencing law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, supra, 35 Cal.4th at p. 1244.)
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the court held California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts—other than the fact of a prior conviction—found by the court rather than by a jury beyond a reasonable doubt.
“As this Court’s decisions instruct, the Federal Constitution’s 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. Apprendi v. New Jersey, 530 U.S. 466 … (2000); Ring v. Arizona, 536 U.S. 584 … (2002); Blakely v. Washington, 542 U.S. 296 … (2004); United States v. Booker, 543 U.S. 220 … (2005). ‘[T]he relevant “statutory maximum,”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ Blakely, 542 U.S., at 303-304 … (emphasis in original).... [¶] ... [¶]
“… Contrary to the Black court’s holding, our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] 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.” (Cunningham, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 860, 871], fn. omitted.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the Supreme Court held in response to Cunningham:
“[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. [¶] ... [¶]
“Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury....
“... Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ [¶] ... [¶]
“... 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. (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) ‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, 523 U.S. at p. 243.)” (Black II, supra, 41 Cal.4th at pp. 812-813, 818, fn. omitted.)
Here, the trial court expressly found: “In aggravation, the Defendant’s prior convictions as an adult are numerous.” The trial court’s conclusion as to appellant’s convictions was predicated on findings made upon proof beyond a reasonable doubt. To paraphrase Apprendi,the facts increasing the penalty for appellant’s crime beyond a prescribed statutory maximum had been submitted to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.)
In his reply brief, appellant states:
“Appellant concedes that under Black II, the trial court’s reliance on the single factor that appellant had numerous prior adult convictions supports the imposition of the upper term sentences in the auto theft and receiving stolen property convictions. (People v. Black, supra, 41 Cal.3d 700 … [trial court’s reliance on single factor of defendant’s criminal history did not violate Sixth Amendment jury trial right and rendered him eligible for the upper term].) Appellant also concedes that this Court is required to follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)”
Despite this concession, appellant seeks to preserve the issue for federal review, contending the “prior conviction” exception set forth in Almendarez-Torres v. United States (1998) 523 U.S. 224 and cited by the California Supreme Court in Black II will not survive federal constitutional review. The “burden is on an appellant to affirmatively show in the record that error was committed by the trial court ….” (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.) An appellant has the burden to perfect the appeal and to show error and resulting prejudice. (People v. Coley (1997) 52 Cal.App.4th 964, 972.) Where error is not affirmatively shown, we will decline to engage in speculation and will presume the judgment or order of the court correct. (People v. Alvarez, supra, 49 Cal.App.4th at p. 694.)
The trial court imposed the upper term based on judicially-found facts deemed constitutionally permissible under Apprendi, Blakely, Cunningham, and Black II. Therefore, re-sentencing is not required.
DISPOSITION
The judgment is affirmed.