Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. NA070710 James B. Pierce, Judge.
Sunnie L. Daniels, 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, Assistant Attorney General, Lance E. Winters and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Frankie L. King (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of carjacking with findings of the personal use of a firearm (Pen. Code, §§ 215, subd. (a), 12022.53, subd. (b)); the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); evading a police officer with willful disregard (Veh Code, § 2800.2, subd. (a)); misdemeanor resisting or obstructing a police officer (§ 148, subd. (a)(1)); and misdemeanor hit and run (Veh. Code, § 20002, subd. (a)(1).) Defendant admitted that he had served a separate prison term for a felony. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that the “trial court’s imposition of consecutive sentences violated [his] Sixth and Fourteenth Amendment rights” pursuant to the decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
On July 1, 2007, this court granted defendant permission to file a supplemental brief in light of the recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825. On September 10, 2007, appellant filed a letter indicating that he would not submit further briefing.
We find no merit in the contention and affirm the judgment.
FACTS
I. The Trial Evidence
On May 31, 2006, Vetekina Motuliki parked his 1993 Chevrolet Astro van across the street from his Long Beach residence. The next morning, his van was missing.
At 5:45 p.m. on June 2, 2006, Paul Solorzano, an off-duty police officer, drove his family in his Suburban to Pacific Avenue and Willow Street in Long Beach to celebrate his son’s graduation. Solorzano parked the Suburban, and his family went into a church. Moments later, Solorzano returned to the Suburban to retrieve something inside. He discovered that a driver was backing his Suburban out of its parking space. Solorzano yanked opened the Suburban’s back door. He was confronted by defendant, who was seated in his backseat and who pointed a handgun at him. Solorzano did not have his department-issued weapon and was helpless to thwart a carjacking. The driver sped off in his Suburban and entered the 710 Freeway.
At 9:30 a.m. on June 3, 2006, two Long Beach police officers with a special computer ran the license numbers of cars on the street against the license numbers of stolen cars in a police database. By this means, the officers found Motuliki’s stolen Astro van, which was parked partway into the garage of defendant’s residence at 6941 White Avenue. The officers set up a surveillance and saw defendant drive off in the van.
The officers attempted to stop defendant, but defendant led the officers on a low-speed pursuit and crashed the van into the front gate of a nursery. Defendant evaded the police by running into a residential area. Defendant’s latent fingerprints were found on the outside of the van. Eventually, defendant was identified and arrested.
That same day, the police also recovered Solorzano’s Suburban, which was parked on the street nearby defendant’s residence. When the Suburban was recovered, items that Solorzano had left inside the Suburban were missing, and the Suburban’s driver’s door lock and ignition had been “punched.”
In defense, defendant claimed an alibi for June 2, 2006, which his father and sister partially corroborated.
II. The Sentencing Proceedings
During sentencing, on count 1, the trial court imposed the middle term of five years, enhanced by 10 years for the use of the firearm. The trial court said that it was imposing consecutive subordinate terms of eight months for counts 2 and 3, the unlawful taking and the evading with willful disregard offenses. It said that the offenses were “completely separate,” involved criminal activity with two other victims, and the conduct presented a danger to these individuals. It imposed concurrent terms for the misdemeanor offenses. For the finding of the service of a prior prison term, the trial court imposed a consecutive year in state prison, making defendant’s total term of imprisonment 17 years 4 months.
DISCUSSION
Defendant argues that the imposition of consecutive subordinate terms on counts 2 and 3 constitutes Cunningham error. We disagree.
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 v. Washington (2004) 542 U.S. 296, 300, 303 (Blakely), 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 Cunningham, supra, 127 S.Ct. 856, the court held that “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, at p. 868.) 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.)
Section 1170, subdivision (b), of the DSL has since been amended in response to the Cunningham decision to provide that the trial court has the discretion, in the interests of justice, to impose any of the three terms provided by statute. (Stats. 2007, ch. 3, signed into law as an urgency measure on March 30, 2007.)
Following Cunningham, in Black, supra, 41 Cal.4th 799, the California Supreme Court 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.’” (Black, supra, 41 Cal.4th 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.)
The court in Black also addressed the issue of consecutive sentencing. (Black, supra, 41 Cal.4th at pp. 820-821.) The court observed that the decision in Cunningham fails to address consecutive sentencing and explained that “‘[n]othing in the high court’s decisions in Apprendi, Blakely, or Booker [United States v. Booker (2005) 543 U.S. 220] suggests that [Sixth Amendment principles] apply to factual determinations that do not serve as the “functional equivalent” of an element of a crime.’” (Black, supra, at p. 821.) It explained that the trial court’s use of consecutive sentences does not violate the Sixth Amendment because California’s sentencing scheme makes judicial fact finding in the realm of consecutive sentencing wholly discretionary. (Id. at pp. 821-822.) Section 669 does not establish a presumption in favor of concurrent sentences. Its requirement is that concurrent sentences must be imposed wherever a trial court fails to specify how the terms must run. Thus, the statute merely provides for a default in the event the trial court fails to exercise discretion. (Id. at p. 822.)
Moreover, the statutes dictate that the trial court may consider aggravating and mitigating factors in determining how the terms will run, but there is no requirement that aggravating factors justify the use of such terms. (Black, supra, 41 Cal.4th at p. 822.) A trial court “need only cite ‘reasons’ for other sentencing choices (§ 1170, subd. (d)), and the reasons given for imposing a consecutive sentence need only refer to the ‘primary factor or factors’ that support the decision to impose such a sentence [citations].” (Black, supra, at p 822.)
Summarizing, the court said: “The high court’s decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.] Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences . . . .” (Black, supra, 41 Cal.4th at p. 823.)
This court is bound by the decision in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we conclude there is no error.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J, DOI TODD, J.