Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA053834, Richard R. Romero, Judge.
Law Offices of Pritz & Associates and Danalynn Pritz for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, Gary A. Lieberman, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
The United States Supreme Court has vacated the judgment and remanded to this court for further consideration of appellant’s sentence in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). As the only issue on remand is whether appellant’s sentence violated his right to due process and a jury trial in violation of the United States Constitution, we restate our original opinion, except as necessary to reflect a modified procedural background and to reconsider the constitutionality of appellant’s sentence, in light of Cunningham. We also reconsider appellant’s sentence in light of the recent decisions of the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), and People v. Black (2007) 41 Cal.4th 799 (Black II).
Appellant contends the trial court erred in imposing the upper term of imprisonment in reliance upon aggravating factors not found by a jury to be true beyond a reasonable doubt. We reject appellant’s contentions, because the trial court relied upon at least one factor that did not require a jury trial. Thus, we affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was convicted of shooting at an inhabited dwelling, in violation of Penal Code section 246, as charged in count 2 of the information; assault with a semiautomatic firearm, in violation of section 245, subdivision (b), as charged in count 3; and being a felon in possession of a firearm, in violation of section 12021, subdivision (a)(1), as charged in count 5. With regard to counts 2 and 3, the jury found true the special allegations that appellant had personally used a handgun.
All further statutory references are to the Penal Code.
The jury acquitted appellant of attempted murder.
Appellant waived his right to a jury trial on the two prior convictions alleged in the information, and admitted he had been convicted in 1999 of voluntary manslaughter, a serious felony for which he served a prison term, without remaining free of custody for a period of five years prior to committing another felony. He also admitted he had been convicted of having been a felon in possession of a firearm in 2000.
The trial court sentenced appellant to a total of 33 years in prison. The court stayed imposition of sentence as to count 2 under section 654, imposed the upper term of nine years as to count 3, doubled as a second strike to 18 years, with a concurrent upper term of three years as to count 5. The court imposed a consecutive 10-year enhancement as to count 3 for the personal use of a handgun in committing an assault with a semiautomatic firearm, and a consecutive five-year enhancement as to count 5, due to the prior conviction of a serious felony. Appellant’s convictions were affirmed by this court in an unpublished opinion filed December 1, 2005, and review was denied by the California Supreme Court March 16, 2006. Appellant’s petition for writ of certiorari to the United States Supreme Court was granted, judgment was vacated, and the case was remanded to this court for further consideration in light of Cunningham, supra, 549 U.S. __ [127 S.Ct. 856]. On May 30, 2007, we recalled the remittitur and vacated our opinion filed December 1, 2005. We have permitted the parties to file supplemental briefs addressing Cunningham, as well as the recent California Supreme Court decisions, Sandoval, supra, 41 Cal.4th 825, and Black II, supra, 41 Cal.4th 799. The only additional issue on remand is whether appellant’s sentence violated his right to due process and a jury trial in violation of the United States Constitution.
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
FACTUAL BACKGROUND
Shortly after noon, on August 15, 2002, Los Angeles Police Officer Andrew Simon was driving in his patrol vehicle on Cabrillo Street near 18th Street in San Pedro when he heard a gunshot. He saw two male Hispanics running eastbound on 18th Street. One of them appeared to be a juvenile. The other appeared to be in his early 20’s, had no shirt and was wearing dark blue baggy shorts. It appeared as if he was carrying a white T-shirt in his right hand and a silver semiautomatic pistol in his left hand. Officer Simon lost sight of this person as he ran through the houses, but saw the juvenile running on Cabrillo Street and took him into custody.
Los Angeles Police Officer Victor Acevedo heard a radio broadcast of a shooting and drove to 18th Street. He saw someone wearing blue pants with no shirt, but carrying a white T-shirt, running towards Cabrillo Street, in between houses. Acevedo confronted the man and drew his weapon, ordering him to raise his hands. The man was now wearing a T-shirt and black baggy shorts. The man did not comply and ran southbound to 18th Street. He was taken into custody by other officers waiting on 18th Street. Acevedo retraced the path of the man he had followed, who was later identified as appellant, and discovered a stainless steel semiautomatic handgun on top of a roof. In the yard where Acevedo had confronted appellant, Acevedo discovered two baseball caps and a pair of dark blue baggy pants.
A gunshot residue swab was taken from appellant’s hands. Jesella C., a minor who lived at 823 West 18th Street, was brought to the scene. She identified appellant as a man who had fired two shots near her apartment after he had argued with her mother.
Los Angeles Police Officer Frank Bancalari interviewed Jesella’s mother, Olivia Lujan, after the shooting. She told him that she was in her bedroom when she heard what she thought were firecrackers outside her apartment. She went outside, and saw appellant, her neighbor, standing there with four other men. Lujan went back inside. A few minutes later, appellant came to her door. Lujan told Officer Bancalari that she went outside with her cordless phone and appellant demanded to know if she was on the phone with police. He grabbed the phone and threw it to the ground. Lujan then walked back inside the house and heard three shots coming from the area outside her door.
Los Angeles Police Officer Brent Riederich examined the area around Jesella’s apartment and recovered three casings and one spent slug. There were also three bullet holes in the front door of the apartment. Los Angeles Police Department ballistic experts examined the gun and determined that the shell casings and bullet came from that gun. Neither the gun, the casings, nor the bullet, however, contained any fingerprints. The swab of appellant’s hand was analyzed and no residue was found.
At trial, Jesella testified that at approximately 12:30 p.m., she heard appellant knocking at the door. Her family and appellant’s family were very close. Jesella saw her mother and appellant arguing outside. Appellant was wearing dark blue baggy pants and was holding a small gun. Jesella then said she saw appellant fire two shots. She then saw appellant running away. On cross-examination, she admitted that she was looking at her mother as she came back into the apartment, and not at appellant when she heard the shots, and said she was not wearing her reading glasses at the time of the shooting.
At trial, Lujan testified that she has memory problems caused by epilepsy and the medicine she takes for it. She did not remember a discussion with appellant about fireworks, but did remember hearing three shots from the area of her front door. She said she did not remember speaking with Officer Bancalari but said his name sounded familiar. Lujan did testify that she was afraid of “defendant’s friends” but denied that that was the reason why she said she could not remember anything. She did state that the only people who threatened her about her testimony were the police.
DISCUSSION
1. Admission of Bancalari’s Testimony About Lujan’s Statements
Appellant contends the court erred in admitting Officer Bancalari’s testimony about Lujan’s statement because Lujan’s trial testimony was not deliberately evasive as required by People v. Green (1971) 3 Cal.3d 981, not inconsistent within the meaning of Evidence Code section 1235, and finally that the admission of his statements violated the Confrontation Clause, pursuant to Crawford v. Washington (2004) 541 U.S. 36.
Evidence Code section 1235 provides that, “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”
Evidence Code section 770 provides that, “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”
“A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770. The ‘fundamental requirement’ of section 1235 is that the statement in fact be inconsistent with the witness’s trial testimony. [Citation.] Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness’s prior statement describing the event. [Citation.] However, courts do not apply this rule mechanically. ‘Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’[s] prior statement, and the same principle governs the case of the forgetful witness. [Citation.] When a witness’s claim of lack of memory amounts to deliverable evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission of his or her prior statements is proper. [Citation.]” (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220, fn. omitted.)
In People v. Simmons (1981) 123 Cal.App.3d 677, cited by appellant, the witness made a statement to the police about the crime, signed a written statement repeating that testimony, but then received a serious head injury causing amnesia. At trial, the witness could not recall anything about the statement he made to police. The court held that observing the demeanor of the witness at trial was meaningless, and therefore the defendant’s constitutional right to confrontation was denied. (Id. at p 681.) Similarly, in another case cited by appellant, People v. Rios (1985) 163 Cal.App.3d 852, the witnesses who had made statements to the police refused to answer any questions whatsoever at trial, and the court determined that the statements were not “inconsistent” within the meaning of Evidence Code section 1235. The court also concluded that because the witnesses refused to answer at all, there was no meaningful opportunity to cross-examine them. (Id. at pp. 864-865.)
Here, in contrast, the cross-examination of Lujan was not meaningless, as she revealed several telling facts: that she was familiar with defendant and was afraid of his friends. In addition, her memory loss was also selective, as she remembered hearing shots and recalled Officer Bancalari’s name. The jury was given the choice to decide whether her story about the loss of memory was credible. On this record, there was a reasonable basis upon which the court could conclude that the witness’s responses were deliberately evasive or untruthful. Thus, admission of her statements to the police was proper. (People v. Perez (2000) 82 Cal.App.4th 760, 765-766.)
In Crawford v. Washington, the Supreme Court recently revised its test for the admissibility of testimonial hearsay against a defendant in a criminal trial. It held that such statements are inadmissible under the Confrontation Clause of the Sixth Amendment, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at pp. 69-69.)
Apart from whether appellant waived this claim by his failure to object (People v. Rowland (1992) 4 Cal.4th 238, 265, fn. 4), there was no Crawford error because Lujan was present and was cross-examined. (People v. Williams (1997) 16 Cal.4th 153, 199-200.)
2. Sufficiency of Evidence
Appellant contends there was not sufficient evidence identifying him as the shooter. This contention is without merit.
Even without considering the hearsay testimony of Lujan, there was ample evidence to support the conviction on counts 2 and 3. Jesella identified appellant, whom she knew well as a close family friend and neighbor, as the shooter, and testified clearly to the events which occurred on her front doorstep preceding the shooting. Officers Simon and Acevedo saw appellant running from the area of the shooting and had the opportunity to view him at close range. Officer Simon saw appellant carrying a weapon. The weapon which was involved in the shooting was found in the area where appellant had been seen running. Immediately after the incident, Jesella identified appellant. Jesella’s description of appellant’s clothing matched the clothing found on appellant’s path as he ran away from the scene. This was more than ample evidence to support the conviction. (People v. Staten (2000) 24 Cal.4th 434, 460-461; People v. Cuevas (1995) 12 Cal.4th 252, 276-277.)
3. Jury Instruction on Admissions
Appellant contends that the trial court should have instructed the jury, sua sponte, with CALJIC Nos. 2.70, 2.71, 2.71.7 and 2.72, on admissions. He argues that these instructions were necessary in light of Lujan’s statements to the police that appellant told her, “I don’t want no trouble. Don’t call the police. It was only firecrackers. You know I’m on parole, this is my area and I’m the manager.”
“An admission is an extrajudicial recital of facts by the defendant that tends to establish his guilt when considered with the remaining evidence in the case. [Citation.]” (People v. Brackett (1991) 229 Cal.App.3d 13, 19-20; see also People v. Mendoza (1987) 192 Cal.App.3d 667, 675-676.)
The statements at issue are that appellant was on parole and that he was setting off fireworks. None of these statements would implicate him for the crimes charged in counts 2 and 3, but confirmed Lujan’s story about her argument with appellant prior to the shooting. Apart from whether the statements were admissions, however, any failure to instruct with CALJIC Nos. 2.70, 2.71, 2.71.7 and 2.72, was utterly harmless. There was overwhelming evidence to support the conviction whether or not the jury believed Lujan’s statements to Officer Bancalari. (See People v. Carpenter (1997) 15 Cal.4th 312, 392-393.)
4. New Trial Motion
Appellant unsuccessfully moved for a new trial on the grounds that he had newly discovered evidence, that he was denied his constitutional right to effective assistance of counsel, that the pretrial identification procedure was unduly suggestive, and that the court improperly admitted the hearsay statements of Lujan.
We will not reverse a motion denying a new trial unless there is a manifest and unmistakeable abuse of discretion. (People v. Staten, supra, 24 Cal.4th at p. 466; People v. Turner (1994) 8 Cal.4th 137, 212, disapproved on another point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
a. Newly Discovered Evidence
Appellant offered as “newly discovered evidence” the declarations of Ms. Calise and Mr. Reygoza. Ms. Calise’s declaration stated that on the day of the shooting, she heard sirens and went outside her house and saw appellant running, wearing black shorts and a white T-shirt. He did not have a gun in his hand. She saw police arrest appellant. She also saw another man running, wearing dark jeans and a T-shirt.
Mr. Reygoza’s declaration stated that he was in front of appellant’s house with some other men when a woman came outside and said that they were making too much noise. Appellant, who was wearing black shorts and a white T-shirt started arguing with the woman. One of the other men became upset and walked towards the woman. Reygoza heard gunshots and everyone scattered. Appellant was not the shooter. One of the men, wearing dark jeans and a white tank top, ran off, holding a gun.
This information was not “newly discovered,” as it could have been discovered before trial. (People v. Beeler (1995) 9 Cal.4th 953, 1004-1005.) The trial court did not err in concluding that this was not newly discovered and that in any event, presentation of the evidence at trial would not have resulted in a different verdict. (People v. Turner, supra, 8 Cal.4th at p. 212.) The police observed two people running from the scene, so another person holding a gun did not contradict the evidence. In addition, Reygoza’s observations of appellant arguing with a woman comported with Lujan’s and Jesella’s statements about what transpired prior to the shooting.
b. Denial of Request for Continuance
Appellant was arraigned in December 2002. At that time he was represented by private counsel, Barrett. On February 3, 2003, new counsel, Fletcher, was retained. He requested 60 days for a trial date, and trial was scheduled to commence March 20, 2003. On March 20, 2003, appellant moved to continue the trial to April 1, 2003, which the trial court granted. On April 1, 2003, appellant requested another continuance on the grounds that Mr. Fletcher had just concluded a trial on March 20th, but needed more time to finish up the investigation in this matter. The court denied the motion. In his new trial motion, appellant contended that this action denied him the opportunity for a fair trial.
The determination whether to grant a continuance is within the trial court’s discretion. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) Appellant’s second attorney was given two months to prepare for trial, and had already been granted one continuance. Moreover, there was no showing that an additional continuance would result in any new information. The court did not deprive counsel of a reasonable opportunity to prepare for trial. (People v. Snow (2003) 30 Cal.4th 43, 70-76; People v. Beeler, supra, 9 Cal.4th at pp. 1003-1004.)
c. Ineffective Assistance of Counsel
Appellant contends that his new trial motion should have been granted because he adequately raised claims of ineffective assistance of counsel. In his motion, appellant contended that his counsel failed to discover Ms. Calise and Mr. Reygoza prior to trial and was forced to go forward unprepared.
As we have concluded above, the declarations of Calise and Reygoza would have had little if any effect on the outcome of the trial, as they did not directly contradict the testimony of Jesella and the officers. As a result, we cannot find any ineffective assistance of counsel. (People v. Lucas (1995) 12 Cal.4th 415, 436; People v. Sakarias, supra, 22 Cal.4th at p. 647; People v. Harvey (1987) 193 Cal.App.3d 767, 773-774.)
d. Pretrial Identification
Appellant also contended in his new trial motion that the field showup for Jesella was impermissibly suggestive because he was the only person shown to her, and thus her identification of him should not have been admitted.
Any error was utterly harmless. Appellant was Jesella’s neighbor and a close family friend, so her identification of him would be reliable no matter who else was in the showup. Considering these circumstances, the field identification was reliable. (People v. Nguyen (1994) 23 Cal.App.4th 32, 39.)
We conclude that the trial court did not abuse its discretion in denying the motion for new trial.
5. Cumulative Error
Appellant contends that even if any of the errors were considered harmless, the cumulative effect resulted in prejudicial error. We have reviewed the record and have concluded that no such effect resulted. (People v. Johnson (1992) 3 Cal.4th 1183, 1238.)
6. Sentencing
a. Dual Use
Appellant was sentenced to the upper term of nine years on count 3, the assault, which was doubled pursuant to the Three Strikes law. He was also sentenced to the upper term of 10 years on the weapon enhancement, plus five years for the prior felony conviction, for a total of 33 years. A sentence on count 2 was stayed, but a concurrent three-year upper term was imposed on count 5. Appellant contends that the court improperly used the fact of his prior conviction to both double the assault sentence and impose the upper term on the base count and enhancement, as well as to add five years to his term.
A court may use a prior conviction to sentence a defendant under the Three Strikes law and to enhance a sentence pursuant section 667, subdivision (a)(1). (People v. Dotson (1997) 16 Cal.4th 547, 557.) As for the use of the prior conviction as a factor in aggravation to impose the upper term for the base term as well as the enhancement, any error was harmless. The court relied on several factors in aggravation, any one of which would have supported the imposition of the upper term, and remand would not serve any purpose. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319; People v. Porter (1987) 194 Cal.App.3d 34, 39).
Appellant contends that pursuant to section 654, the court should have stayed the sentence on count 5, being a felon in possession of a weapon, because possession of a weapon was part and parcel of the other two offenses. This contention is without merit. Separate sentences are authorized because there is evidence that appellant had the gun prior to the commission of the shooting or assault, and because the shooting and assault involved an additional intent beyond the intent to possess the gun. (People v. Jones (2002) 103 Cal.App.4th 1139, 1149.)
b. Cunningham/Blakely/Apprendi
Appellant contends his sentence violates his federal constitutional right to due process and a jury trial, because in choosing to impose the upper term, the court relied on factors not found by a jury. In enumerating the aggravating factors to justify sentencing appellant to upper terms for the convictions of assault with a firearm (count 3) and being a felon in possession of a firearm (count 5), the trial court stated:
“The violent offense here was preceded by [appellant’s] prior record of voluntary manslaughter.
“He had a gun conviction recently for having a firearm, so he’s having a propensity [to carry] weapons.
“His manner in which this offense was committed shows that there was some thought to it. It wasn’t spontaneously committed.
“He served a prior prison term.
“He was on parole for gun offense, possession of a firearm[,] when this offense was committed.
“His conduct on parole has not been satisfactory.
“Great violence in this offense.
“He was armed with a gun.
“The circumstances in aggravation outweigh any in mitigation.
“I don’t believe there are any in mitigation.”
As the United States Supreme Court held in Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), “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. [Citations.]” (Cunningham, supra, 127 S.Ct. at p. 860.) At the time of appellant’s conviction, California’s determinate sentencing law (DSL) provided for a lower, middle and upper term, and required the sentencing court to order imposition of the middle term, unless there were circumstances in aggravation or mitigation of the crime. (§ 1170, subd. (b).) In Cunningham, the United States Supreme Court disapproved People v. Black (2005) 35 Cal.4th 1238 (Black I), in which the California Supreme Court had held that the DSL’s upper term was the statutory maximum for purpose of applying the Blakely/Apprendi rule. (See, e.g., Cunningham, supra, 127 S.Ct. at p. 871.) The court explained that because the upper term may be imposed only when the trial judge finds an aggravating circumstance, the statutory maximum under the DSL was the middle term. (Id. at p. 868.) Thus, by permitting the imposition of the upper term based on facts found by the court rather than by a jury beyond a reasonable doubt, the DSL was inconsistent with the rights to a jury trial and due process guaranteed by the Sixth and Fourteenth Amendments. (Id. at p. 871.)
The Legislature has since amended the statute in response to Cunningham to give the sentencing court discretion to choose any one of the three terms. (See, e.g., Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007.) All further references in this opinion to the DSL or to section 1170 are to former Penal Code section 1170, in effect at the time of appellant’s conviction, unless otherwise indicated.
Appellant contends the trial court erred in relying upon facts not found by the jury, including appellant’s criminal record, the fact that he was on parole with unsatisfactory performance, and the fact that he had served a prior prison term. Cunningham reaffirmed an exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), and affirmed in Apprendi, which allows a judge to impose a sentence above the statutory maximum, based on a prior conviction neither found by a jury nor admitted by the defendant. (Cunningham, supra, 127 S.Ct. at p. 860; see Apprendi, supra,530 U.S. at pp. 488 & 490.) Thus, the United States Constitution does not mandate a jury trial on prior convictions. (Apprendi, at pp. 487-490.) Any right to a jury trial on prior convictions would be purely statutory. (People v. Epps (2001) 25 Cal.4th 19, 23; see § 1025.) Further, the Almendarez-Torres/Apprendi “recidivism exception” applies broadly to all sentencing determinations which require no more than an “examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction.” (People v. McGee (2006) 38 Cal.4th 682, 703, 709, italics omitted; see also Black II, supra, 41 Cal.4th at p. 819; People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.)
In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)
Appellant acknowledges the recidivism exception, but contends the only evidence of his parole status, performance on parole, his prior prison term and the recentness of his prior gun conviction consisted of hearsay statements in the probation report. With regard to appellant’s prior prison term and the timing of the gun conviction, we disagree. Appellant admitted his prior convictions for manslaughter and being a felon in possession of a firearm, as well as his prior prison term. Appellant admitted the prior gun conviction occurred in 2000, a mere two years before he committed the current crimes.
Further, facts necessarily reflected in prior convictions admitted by the defendant need not be established by jury trial. (See Blakely, supra, 542 U.S. at p. 303; Black II, supra, 41 Cal.4th at p. 819, citing United States v. Smith (6th Cir. 2007) 474 F.3d 888, 892 [no jury trial required on view that criminal history was “‘“extensive and egregious”’”].) Two additional factors cited by the trial court were necessarily reflected in the admitted prior convictions. Appellant’s most recent prior conviction showed a propensity to carry weapons as it, like one of his current convictions, was for being a felon in possession of a firearm. Voluntary manslaughter and assault with a firearm with a personal use finding are both violent crimes. (See § 667.5, subd. (c)(1) & (8).) These additional factors, along with the prior prison term and recentness of the gun conviction, bring the number of properly considered factors to four.
We do not suggest that all four factors justify the upper term for each offense charged in counts 3 and 5. The court’s finding that a current offense and prior offense were both violent patently applies only to appellant’s sentence for assault with a firearm (count 3).
We need not resolve the question whether the current probation report is a court record which the trial court may examine in order to determine appellant’s parole status and performance on parole. (See Black II, supra, 41 Cal.4th at p. 819.) The Constitution does not require a jury trial as to all aggravating factors cited by the sentencing court, where the defendant has been afforded a jury trial as to at least one of them -- or, as here, where appellant has waived a jury and admitted one or more of the factors. (See Black II, supra, 41 Cal.4th at p. 812.) “[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.” (Ibid, italics omitted.)
Appellant contends Black II and Sandoval were wrongly decided and cannot withstand constitutional scrutiny. He asks that we reverse his sentence despite those decisions, or reduce his sentence to the middle term. We decline to consider appellant’s argument, as we are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant contends that under the circumstances of this case, any Cunningham error cannot be considered harmless as to count 5, felon in possession of a firearm. He argues that the use of his prior conviction as an aggravating factor, although constitutionally valid, would nevertheless violate California Rules of Court, rule 4.420(d), prohibiting the use of a fact that is an element of the crime to impose the upper term. A prior felony conviction is an element of the crime of being a felon in possession of a firearm, and cannot also be used to increase minimum sentence for the crime. (People v. Baird (1995) 12 Cal.4th 126, 129.) As we have found no Cunningham error, we need not address this issue. However, we observe that appellant admitted he served a prior prison term, one of the factors in aggravation cited by the trial court. It is not improper to consider prison time served on the prior qualifying conviction, as a prison term is not an element of the offense of being a felon in possession. (Cf. People v. Baird, supra, 12 Cal.4th at pp. 133-134.)
The Supreme Court remanded for reconsideration of only one issue -- whether appellant’s sentence violated the United States Constitution. As we have determined that it did not, we do not revisit appellant’s contentions regarding California Rules of Court, rule 4.420(d).
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. WILLHITE, J.