Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA055388. Joan Comparet-Cassani, Judge.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, theresa a. Patterson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P.J.
PROCEDURAL HISTORY
On April 1, 2004, the Los Angeles District Attorney filed an amended information in the Superior Court of Los Angeles County against appellant and co-defendant’s Thomas Milam, Ralph Cole and Richard Ellis charging them with three counts of second-degree robbery (Pen. Code § 211, counts 5, 6 and 7), and six counts of false imprisonment by violence (§ 236, counts 8, 9, 10, 11, 12, 13). The information alleged that counts 5, 6 and 7 were serious felonies within the meaning of section 1192.7, subdivision (c). The information further alleged that during the commission of counts 5, 6, and 7, all defendants personally used a handgun (§ 12022.53, subd. (b)), and they all personally used a handgun during the commission of counts 8, 9, 10, 11, 12 and 13. (§§ 1203.06, subd. (a)(1), and 12022.5, subd. (a)(1)), causing these offenses to be both serious (§ 1192.7, subd. (c)(8) and violent (§ 667.5, subd. (c)(8)) offenses. Further, the information alleged that appellant had three prior felonies within the meaning of section 1203, subdivision (c)(4).
All further statutory references are to the Penal Code.
On August 31, 2004, a jury trial commenced. On September 16, 2004, the jury found appellant guilty on all counts, and found all of the gun use enhancements true.
On October 13, 2004, appellant’s motion for appointment of private counsel was granted. On February 16, 2005, appellant’s motion for a new trial was denied and he was sentenced to state prison for a total term of thirty-five years and eight months. (High term five years on count 5, with an additional ten consecutive years on the gun use; one-third the mid term of one year on counts 6, 7, with an additional forty months for the gun use on each of those counts; consecutive terms of 8 months [one-third the mid-term of twenty-four months] on counts 8, 9, 10, 11, 12, and 13, with an additional sixteen months for the gun use on each of those counts.) Appellant was awarded 766 actual and 114 days of good time pre-sentence custody credits for a total of 880 days.
On April 4, 2005, appellant filed a timely notice of appeal.
FACTUAL HISTORY
Prosecution Evidence
On January 4, 2003, Anatoly P., Leo S., and Nikolai G. were working at a pawn shop in Long Beach. Around 3 p.m., two African-American men, later identified as codefendants Ralph Cole and Richard Ellis, came into the shop and purchased a gold chain. Cole asked if he could exchange the chain if his girlfriend did not like it and Nikolai G. said he could.
About 4:50, ten minutes before closing time, Cole and Ellis returned. From behind the counter, Nikolai G. buzzed them into the store. Some other African-American men came into the store behind them. At the time the men entered, there were six customers in the store, a woman and her four children and a man.
Cole said that his girlfriend did not like the chain and asked to exchange it. Nikolai G. started to turn and go to the safe. Cole then pointed a gun at Nikolai G. and told him to lie on the floor. At the same time, Nikolai G. saw a third man jump over the showcase near Sokolsky. As Nikolai G. slowly went down towards the floor, he pushed the silent alarm button.
Cole jumped over the table and grabbed a store gun. He pushed Nikolai G. to the ground with his foot, kicked him in the face and handcuffed him. Cole asked Nikolai G. several times for the keys to the safe, while hitting him in the area of his kidneys. However, Nikolai G. did not have the keys. Cole searched Nikolai G.’s pockets, and took his wallet.
Nikolai G. noticed another man putting gold and other items into a plastic garbage bag. Another man was searching and hitting Lev S. Nikolai G. heard a fourth man asking Anatoly P. for the keys. Cole appeared to be in charge because he was giving orders to the other men. Nikolai was sure that at least one other man had a gun, but was not sure which one.
Lev S. had been behind the counter gathering gold to put in the safe, when a man jumped over the counter, pointed a gun to the back of Lev S.’s head and said not to move. The man tore off the glasses and the button for opening the doors to the store from around Lev S.’s neck. He then pushed Lev S. and told him to lie on the ground. After Lev complied, his wallet, telephone, car and house keys were taken from him. Lev’s wallet contained his driver’s license, an ATM card and two credit cards.
Anatoly P. was in the back of the store and heard some commotion out front. He saw a man with a gun hiding behind the safe, and trying to look inside the room where Anatoly P. was. Anatoly P. activated the silent alarm. He then raised his hands, and he was frisked, handcuffed and put on the floor. Anatoly P.’s wallet was taken, but he was unable to see who was doing these things. While he was on the floor, Anatoly P. saw two men on top of Lev S. handcuffing him. Anatoly P. next saw one man putting gold inside a black bag. The man who had been hiding behind the safe was saying, “Stay down, stay down, nobody gonna get hurt.” Anatoly P. heard another voice asking for the combination to the safe. One of the men, later identified as Cole, put a gun to Anatoly P.’s head and said either, “Where’s the combination?” or “Open the safe.” Anatoly P. indicated that one of the safes was unlocked. Next, Anatoly P. saw a man filling a plastic bag with the “little yellow envelopes” that contained pawned items.
Marina R. was one of the customers in the store during this incident. She came to the store with her four children (ages 11, 8, 7, and 6) to recover some items she had pawned. A few minutes after she arrived, she saw three people enter the store. While she was being shown items, one of the men who had entered the store began to struggle with another employee. She saw the man strike that employee and jump over the counter and handcuff him. The man struggling with the employee was about two or three inches taller than her. He had dark skin and his hair was tied up with something and he had “little braids.” The man with the braids started putting things in a bag. One of the other men Marina R. saw was taller, a little overweight, with very short hair. He was African-American, but was “lighter skinned.” The third man was about the same height and color as the man with the braids, and also wore a rag on his head. Each of the three men had a gun.
As this was happening, one of Marina’s children started to cry. She did not understand what anyone was saying because they were speaking English. Marina started to scream, yell and cry. The taller man with the lighter skin pushed her towards a door. Marina opened the door thinking it was an exit to the street. When she did so, the man with the braids ran over and hit Marina R. in the head with a gun. He then pushed Marina R. and her children into the room, and locked the door. Marina R. and her children were crying and the children urinated on themselves.
Leonard H. was also in the pawn shop at the time of the robberies. He noticed a dark-skinned man next to him draw a gun. The man told him to lie down on the ground, where he was then handcuffed. Later, he was escorted behind the counter where he again laid down on the ground. Behind the counter, Leonard recognized two employees from the pawn shop who were also handcuffed. He remembered seeing two of the robbers had guns.
After items were removed from the safe, Cole, yanked Nikolai P. up and took him to the back door and asked him to open it. After Nikolai P. told him the door was open, Cole turned the knob and went through the door. The door Cole exited led to a parking area which had stairs leading to apartments located above the pawn shop.
Before leaving, Cole told Nikolai to go back inside and someone else told him to stay down. As Nikolai was trying to hit the alarm one of the handcuffs on him came loose. At some point, all of the robbers left. Afterwards, Nikolai grabbed a shotgun he had in the store. After loading it, he closed the back door and locked the gate so that the robbers could not return.
Nikolai P. then dialed 911 and the police told him they knew there was a robbery at the location. He told the police there was a handcuffed customer who was not feeling well and requested an ambulance. Nikolai noticed that a revolver in the store was missing. He estimated that from the time he first knew something was wrong until the suspects left the store was about five minutes. An in-store video system captured events during the first transaction and during the robbery. After the men left, Anatoly P. heard somebody running on the roof of the pawn shop.
Long Beach Police Officer Brian Ekrem responded to the scene of the robberies. After parking his car, he ran past the pawn shop towards the alley on the north side of the building. As he was running towards the alley, he saw two African American men, identified as appellant and Ellis, running into a fenced-in parking lot behind the pawn shop. Ekrem did not see guns in their hands. Officer Ekrem yelled at them to stop, but they did not comply. Instead, appellant, followed by Ellis, ran up the stairs into what looked like apartments. When they got to the top floor, they ducked behind the railing out of view. Ekrem kept telling them to stand up and come down. When Ellis made a sudden movement, Ekrem, from behind a telephone pole, fired one round at him that missed. Ellis pulled his head back down, and Ekrem heard noises like they were opening a door into one of the apartments.
Officer Jeannie Villanueva had positioned herself in the alley, and was watching the staircase of the apartment above the pawn shop. After about one-half hour, appellant yelled that he was going to come out and he surrendered. Appellant had braids in his hair. Ekrem was present when appellant surrendered to Officer Villaneuva. Ekrem took appellant to the police command post.
Nikolai G. lived in an apartment upstairs from the pawn shop. The police officers deployed tear gas into that apartment and Cole and Ellis, who were inside, then surrendered. Milam was apprehended elsewhere following a police pursuit, during which he dropped a black bag with jewelry inside, shot at officers, and broke into a townhouse.
Officer Joshua Rodriguez went on the roof of an adjacent baby store. Inside a ventilation shaft, he saw a gun. Looking down the shaft, through the broken tile, he also saw two guns inside the baby store. The guns were recovered. Each of them was loaded.
The following items, not belonging to Nikolai G., were found in his apartment. Two bulletproof vests (one in the refrigerator and one under the mattress), Anatoly P.’s wallet, a small baggie containing what appeared to be marijuana and some white T-shirts. Two black trash bags, containing a large quantity of jewelry and other items, were found in a dumpster underneath the stairwell. Two surveillance tapes, a cellular telephone and Anatoly P.’s wallet were found inside an emergency shut-off valve at the front of the apartment complex.
After the robberies, the police brought two men to Anatoly G. to see if he could identify them. Anatoly G. identified Cole as the person who brought the chain from him and later pulled out the gun and robbed him. He also identified Ellis as the man who came into the store initially with Cole and later participated in the robbery. Anatoly G. identified appellant as being present during the robbery, but could not describe what he did during the robbery.
At trial, Nikolai G. identified appellant as one of the men who was in the pawn shop that day.
Defense Evidence
Appellant testified in his own behalf. On January 4, 2003, at approximately 1:00 p.m., appellant and two friends, including Milam and a man known by the nickname of Boomer, went to the pawn shop. Appellant went to purchase some CDs and look around the store. He wound up purchasing a video game for X-Box. While there, appellant noticed some suspicious acts that made him feel they might be there for some other purpose. He had no intention to rob the store.
After they left the store, they went to Boomer’s house and sat around talking about the video games. Appellant was nervous because of some activity he saw earlier at the store. They talked about going back to the store to return the CDs and gold chain, and to case the place to rob it. Appellant did not believe they were going to rob the store that day, but rather another day. Appellant was going to see if the store people would open the door for four people.
At approximately 4:00 p.m., appellant, Milam, Cole, Ellis, Boomer and another man left to go back to the pawn shop. At the pawn shop, Cole and Ellis entered first, followed by appellant, and then after a couple of minutes, Milam.
Appellant went up to the counter behind Marina who was fitting a chain. To his right, appellant heard scuffling and when he looked over his shoulder he saw Ellis and Cole pointing guns. When he saw Cole pull out the gun he was surprised because they told him they probably were not going to rob the store that day.
Appellant acknowledged that he participated in the robberies. He jumped over the counter, thinking of grabbing more CDs, but because he did not want to be involved, he jumped back over the counter and just stood there. At that time, one of the store workers was being escorted towards the cash register area. Cole, the light-skinned African-American with a gun, was telling everyone to lie down. The only person appellant saw was Leonard H. Everyone else was already behind the counter.
Boomer said if there was anyone else in the store to handcuff them so they would not try to be heroic. Appellant was told by Boomer to handcuff Leonard H., and he did so. He dragged Leonard H. away from the door so he would be out of the walkway.
Using the videotape, appellant described various events taking place during the robberies, including Cole ordering people to lie down and appellant pulling Leonard H. from near the door, and Leonard H. eventually lying down on the other side of the counter. Later video showed appellant dragging Leonard H. to the front.
Appellant testified that he had wanted to stay out of sight because he saw someone at the door to the pawn shop. He went behind the counter with his head ducked down. There appellant noticed two guns on the floor. Initially, he left them there. Appellant began to hear sirens and everyone started to run towards the back of the store.
Because he wanted to see the back, and he wanted to run, he picked up the two guns so that he would not run past the man lying on the floor and allow that man to get the guns. Appellant also testified he believed the guns were better in his possession, than with the others committing the robbery to prevent any shooting. He squatted down with the guns in his hands away from his body pointed to the floor. Appellant insisted that he did not have his finger on the triggers, nor was he pointing the gun at anyone. When he held the guns in front of him there was no one between him and the counter. He never used the guns to take any property.
Once he stepped out into the walkway to see where everyone was running, he heard Cole say hurry up and get the stuff under the counter. Appellant could not continue out the back because Cole was there talking to the owner, and he did not want to run past him like he was running out on him. Instead, he stepped back behind the counter and started grabbing envelopes to show his involvement.
He also did what Cole told him because he did not know Cole. Cole had a gun and he was afraid of him. He put the guns in his waistband or his pocket and they all started running to try and get out of the store. Appellant ran through the walkway to the back of the store. He saw a door to the right that looked like a back door.
The door was swinging open like someone had just gone through it. Appellant opened the door and saw a woman and two children standing there like they were coming back into the store. It spooked appellant because he hadn’t seen her before. He whispered to her that it was okay, and told her to stay there. He then closed the door. Cole came up to the same door and grabbed for the door. Appellant told him it was not an exit. He closed the door on Cole and locked it.
Appellant denied that he struck Marina R. with a gun. He recalled that her testimony had been that a man with a bandana and braids struck her. During the robbery appellant never had anything on his head. He speculated that the man who initially moved her to the back may have hit her with a gun. Moreover, Marina R. testified that the man who struck her was approximately 5 feet and 3 or 4 inches tall. Appellant is almost 6 feet 1 inch tall.
Appellant then ran deeper into the store. Cole found the back door and appellant followed him out of the store. They ran across the parking lot to the back gate. When he left the store he had the two guns inside his pockets. The guns were not visible because he was wearing a long sweater.
Cole went out the gate first. When appellant went to grab the gate, he heard an officer screaming “freeze.” Cole and appellant turned around. They both put the garbage bags containing the property from the store inside a garbage bin. Appellant did not throw the guns inside the garbage bin because he was afraid if he took them out he would have been shot.
Appellant and Cole then ran up a staircase. They both got down on their knees and crawled to the end of the walkway. They stayed there for a couple of seconds. Cole then opened a door into a vacant apartment. Appellant ran into the back bedroom and climbed up to the roof to see if he could jump off the roof to escape. However, there were police on all ends of the building. Appellant jumped back in the window and kneeled down against the wall.
Appellant thought that the police were going to shoot him because he had the guns. So he climbed back onto the roof and dropped the guns in an air conditioner vent. After doing so, he climbed back into the apartment and told Cole they should go out so they wouldn’t be killed. Appellant convinced Cole to give him the gun he had, climbed back onto the roof and threw it down the air conditioner vent. When he climbed back into the apartment, he heard two shots. He did not know if it came from the pawn shop, because when he left Ellis was still pressuring the owner to open the safe.
Appellant started to think of which way he could come out. He peeked through a front window and saw Ellis on the porch on the walkway. Ellis was trying to take off his shirt or coat to change. Appellant told Cole that he saw his friend outside. Cole told appellant to open the door to let Ellis in, and he did so.
Ellis told appellant that the police had shot at him. He also told him, “they [the police] got your boy,” referring to Milam. Appellant looked through the window to see if he could see the police. At the same time, he was trying to stay near the door because Cole and Ellis were friends. Appellant had not met them prior to that day and Ellis and Cole were acting very aggressive and tearing things up. Appellant told them he was going to go outside. Ellis told him he was going to be killed. Appellant said he was going to wave a towel so the police would see he was giving himself up. He then surrendered.
Appellant talked with two police officers after the robberies. He told them he did not enter the store with a gun, but when he saw two guns on the floor, he picked them up. He explained that he took the gun so no one could use them. He also told police that he was surprised when others who participated in the robberies pulled out guns, because prior to entering the store he was told they were not going to rob the store, just look it over. He stated to the police that he decided to act like he was going along with the robbery to avoid any problems.
CONTENTIONS ON APPEAL
Appellant filed his initial opening brief on October 27, 2006. That brief raised the single contention that the imposition of an upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and appellant’s federal constitutional rights to a jury trial. On March 15, 2007, appellant filed a supplemental letter brief regarding the effect of the United States Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) on appellant’s sentence. Appellant contends that “[t]he court at the time of sentencing relied on a single non-recidivist aggravating factor; that the crime involved a great deal of planning and sophistication . . . when it imposed the upper-term sentence of five years in state prison on the base term of Count 5.” Appellant contends this sentence was in violation of Cunningham and that “appellant’s sentence must be reduced to the presumptive mid-term of three years pursuant to Penal Code section 213, subdivision (b)(2). Alternatively this case must be remanded for a jury finding on the appropriate sentence based on the required beyond a reasonable doubt standard.”
Respondent filed its Opening Brief on March 16, 2007. Regarding the allegation of “Cunningham” error, respondent’s position is: 1) appellant forfeited this clam by failing to object to the sentence; 2) there was no Cunningham error because the recidivism exception applied in this case; and 3) any Cunningham error was harmless. In imposing the base sentence on Count 5, the trial court only mentioned the factor that the crime showed a great deal of planning and sophistication. However, in imposing the consecutive sentences, the trial court found multiple aggravating factors that fell within the recidivism exception. Specifically, the court mentioned that “appellant’s prior convictions were numerous (California Rules of Court, rule 4.421(b)(2)), his convictions were of an increasingly serious nature (ibid.), appellant was on probation at the time he committed the instant offenses (California Rules of Court, rule 4.421(b)(4).)” Respondent argues, “the court could have used one or more of these aggravating factors to justify the upper term on the robbery count, while still imposing consecutive sentences. Given the court’s comments . . . the court undoubtedly would have done so had it been aware such was necessary.”
Lastly, respondent argues that “[h]ere, it can confidently be said beyond a reasonable doubt that the jury would have found these crimes involved planning or sophistication, had that aggravating circumstance been presented to it.” Consequently, Cunningham error, if any, was harmless.
On August 27, 2007, on its own motion, this court issued an order vacating submission and requesting additional briefing in this case in light of the additional United States and California Supreme Court decisions: Cunningham, People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval). On December 21, 2007, a supplemental letter brief was filed on behalf of appellant addressing these additional issues.
DISCUSSION
Waiver
Before considering whether appellant’s sentence complied with the requirements of Blakely and Cunningham, we address the question of waiver. A “waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” (Johnson v. Zerbst (1938) 304 U.S. 458, 464.) “If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.” (Blakely, supra, 542 U.S. at p. 310.) Here, however, there was no “appropriate waiver” of the right to a jury trial. Appellant was sentenced on February 8, 2005, after Blakely, but before Black I and Cunningham. A request for a jury trial on the aggravating circumstances at that time would have been futile, given the California Supreme Court’s holding in Black. “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.]” (People v. Welch (1993) 5 Cal.4th 228, 237-238.) The circumstances do not justify a finding of a knowing and intelligent waiver of the right to jury, as to the circumstance in aggravation.
Cunningham/Blakely Analysis
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely, supra, 542 U.S at page 303, the high court stated 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 People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on California’s determinate sentencing law (DSL) and concluded that its sentencing scheme was constitutional. The court held, “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 defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
In Cunningham, supra, 127 S.Ct. 856 at page 860, the United States Supreme Court overruled Black I. It held, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” The court invalidated the California DSL to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Id. at p. 871.)
The California Supreme Court addressed some of the issues created by Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II), where they held that “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. [Citation.] 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.’” (Id. at p. 813.) “[I]mposition 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.) This principle applies even where the trial court relied on other factors in aggravation of the term. (Ibid.)
The court noted that for example, in Black II, the record contained substantial evidence of “‘prior convictions . . . [that were] numerous or of increasing seriousness.’” (Black II, supra, 41 Cal.4th at p. 818; see Apprendi, supra, 530 U.S. at p. 488; Jones v. United States (1999) 526 U.S. 227, 248.) Similarly, where the record supports the service of a prior prison term, that recidivist factor also permits judicial factfinding imposing an upper term sentence. (Black II, at p. 818.)
In Black II’s companion case, People v. Sandoval, supra, 41 Cal.4th 825, the California Supreme Court held that the statutory maximum sentence under the DSL is the upper term if there is any aggravating factor found true by the jury or admitted by the defendant, or if the aggravating factor related to a prior conviction. It further found such error subject to the harmless error standard of Chapman v. California (1967) 386 U.S. 18. (Sandoval, at p. 838.)
We accept appellant’s claim that imposition of the upper term based solely on the factor that the crime involved sophistication and planning was reversible error in violation of Cunningham. The aggravating factor that the crime involved planning and/or sophistication does not fall within the recidivism exception to the Blakely/Cunningham rule, and was neither supported by an express jury finding nor admitted by the defendant. The trial court’s reliance on this factor, therefore, was improper.
Respondent argues that we may find the error harmless because the evidence that the offenses evidenced planning and sophistication was so overwhelming that if the fact had been submitted to the jury it could have reached no other conclusion but that this aggravating fact was proven beyond a reasonable doubt. (See Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546] [court held failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error]; see also People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)
Although the record is abundantly clear that the trial judge held this view of the evidence we do not find beyond a reasonable doubt that the jury would have so found, nor do we deem it appropriate to reach such a conclusion based upon our review of the evidence at trial. Although the trial court clearly felt appellant was involved in the planning, we are unable to reach that conclusion beyond a reasonable doubt. While evidence of planning and sophistication was presented during the trial, given the fact that there were four participants in this crime, it is not clear to this court that the jury would have so held as to this particular individual. The trial judge felt that appellant was not credible and that his explanation was ludicrous and not to be believed. Even so, it is possible that the jury could have found appellant to be less culpable than the remaining defendants based on his testimony, the fact that he surrendered voluntarily and his willingness to speak with the police. We also think the fact that appellant was tried together with co-defendant Milam, the individual involved in the shoot-out with the police and who also invaded the home of an elderly woman in his effort to escape arrest, is also relevant to assessing what a jury might have concluded. Although it is very likely that a jury would have found true all or most of the non-recidivist aggravating factors upon which the trial court could have relied. We cannot say beyond a reasonable doubt that the jury would have assuredly found the presence of the necessary planning and sophistication. (See People v. Diaz (2007) 150 Cal.App.4th 254, 266.)
It is the law in California that when a court relies upon both improper and proper factors in imposing a sentence, its exercise of discretion may be upheld, and no resentencing is necessary if this court can determine from the record that the court would have exercised its discretion in the same way without the improper factor. (See People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Kelly (1997) 52 Cal.App.4th 568, 581, fn. 18; People v. Sayres (2007) 150 Cal.App.4th 1040, 1046; People v. Waymire (2007) ___ Cal.App.4th ___ [60 Cal.Rptr.3d 271].)
Although this appeal was only from the sentence on count 5, appellant was sentenced consecutively on a total of nine counts and their related enhancements. At the sentencing, the trial court cited several factors in support of its imposition of consecutive terms. As noted above, three factors were not properly considered because there was neither a finding by the jury or an admission by defendant: (1) “the victims were vulnerable” (counts six, eight and eleven); (2) “defendant’s action was particularly vicious and cruel” (count 13), and (3) “the crime involved the possibility of great bodily harm” (12022.53, subd. (b) enhancement to count six). However, additional factors the trial court cited were: “defendant’s numerous prior convictions” (count seven); “defendant was on probation at the time he committed this offense” (count seven); “defendant’s convictions are of increasing serious nature” (count nine); and “his prior performance on probation was unsatisfactory” (count 12).
The trial court can properly consider recidivist factors in selecting the appropriate sentence. The trial court in this case had such information available. Appellant’s record established his extensive criminal history involving crimes of violence, a number of offenses of increasing seriousness, his failure to perform satisfactorily on probation, and his prior prison term. These factors all relate to his recidivism. Under Apprendi, factors relating to recidivism do not require a jury determination.
However, whether the prior conviction exception of Almendarez-Torres v. United States (1998) 523 U.S. 224, is properly interpreted to apply not only to the fact of a prior conviction but also to other issues relating to the defendant’s recidivism, including the defendant’s status as a probationer or parolee at the time the current offense was committed and the existence of “numerous” or increasingly serious prior convictions, is currently pending before the California Supreme Court. “(People v. Towne, review granted July 14, 2004, S125677, supp. briefing ordered, Feb. 7, 2007 [parties to address the following issue, among others, ‘Do Cunningham v. California, supra, and Almendarez-Torres v. United States [, supra,] 523 U.S. [at pp.] 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory (California Rules of Court, rule 4.421, subds. (b)(2)-(b)(5))’]; People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914.)” (People v. Valesaquez (2007) 152 Cal.App.4th 1503, 1514, fn. 10.)
While these are legitimate factors that can be relied upon to impose an upper term sentence, the above recitation of factors alerts this court to the additional potential error that can be caused by the dual use of the same facts both to select an upper term as well as a consecutive term. (People v. Lawson (1980) 107 Cal.App.3d 748.) Our harmless error analysis would necessitate many levels of speculation as to what the trial court would have decided regarding the appropriate sentence in this case. Given the complexity of the sentencing in this case and the unanticipated sentencing issues which have arisen since the date of the original sentence, we feel it would be unduly artificial for us to engage in the process of second guessing the trial court and try to make the required determination that the error in case was nonprejudicial because it is “‘“not reasonably probably that a more favorable sentence would have been imposed in the absence of the error.”’” (People v. Osband, supra, 13 Cal.4th at pp. 728-729.) We believe the trial judge needs to take a comprehensive look at the overall sentence in this case, because the simple correction of one error may well create another problem.
“‘Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.”’ [Citation.] Only a single aggravating factor is required to impose the upper term . . . .” (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
Based on the foregoing, it is appropriate to reverse the upper term sentence imposed on count 5 in this case and remand for resentencing. At resentencing, the court should follow the current version of section 1170, subdivision (b) (Stats. 2007, ch. 3, § 2 [SB 40]), which provides that sentencing terms shall rest within the sound discretion of the trial court. (See Sandoval, supra, 41 Cal.4th at pp. 832, 845 847.) In his supplemental letter brief, appellant argues that “retroactive application of SB 40 to appellant’s case violates the federal constitutional prohibition against ex post facto laws.” However, we are required to follow our high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) Therefore, we remand the case to the trial court to sentence appellant in a manner consistent with our high court’s ruling in Sandoval.
DISPOSITION
The judgment is reversed with respect to the sentence imposed in count 5 and the matter is remanded for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: RUBIN, J., FLIER, J.