Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD189468. Kerry Wells, Judge.
McDONALD, Acting P. J.
A jury convicted Clayton Mack of three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), three counts of forcible oral copulation (§ 288a, subd. (c)(2)), kidnapping for purposes of rape (§ 209, subd. (b)(1)), residential burglary (§ 459), making a criminal threat (§ 422), inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)), attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)) and disobeying a court order (§ 166, subd. (a)(4)). The jury also found true a series of associated special allegations. The trial court sentenced Mack to an indeterminate prison term of 25 years to life, plus a consecutive determinate prison term of 38 years 8 months.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Mack argues the court erroneously denied his motions to change retained counsel and his motion to represent himself under Faretta v. California (1975) 422 U.S. 806. He also argues that, under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the court's imposition of the upper term for one component of his determinate sentence (count 7) was error.
Mack also asserts on appeal execution of the term of life with the possibility of parole imposed for the conviction for kidnapping for purposes of rape (count 1), stayed under section 667.61, subdivision (f), and execution of the concurrent term imposed for the conviction for inflicting corporal injury on a cohabitant (count 9) should have been stayed under section 654. The People concede, and we agree, the court should have stayed execution of those terms under section 654. Mack also contends, and the People agree, that the abstract of judgment incorrectly lists his conviction on count 10 as a violation of section 281, subdivision (a)(2); instead it should have shown a conviction for violation of section 261, subdivision (a)(2). On remand, the trial court shall stay execution of the sentences on counts 1 and 9 pursuant to section 654 and amend the abstract of judgment to reflect the proper Penal Code section for count 10.
In an unpublished opinion filed on June 1, 2007, we affirmed the judgment except the sentence of the upper term imposed for the burglary conviction (count 7) and execution of the sentences on counts 1 and 9, which we reversed, and remanded the case for resentencing. On August 14, 2007, the California Supreme Court granted the People's petition for review. On September 12, 2007, the California Supreme Court transferred the case to this court with directions to vacate our decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. On September 14, 2007, we invited the parties to file letter briefs addressing the effect of People v. Black and People v. Sandoval on this case. We received, and have considered, the parties' supplemental briefs. We vacate our original opinion and issue this new opinion affirming the trial court's judgment in part and reversing it in part.
The People's petition for review was granted in case no. S153653.
I
FACTS
A. Prosecution Case
Jaime J. dated Mack for over two years and lived with him for some period of time. However, they terminated their relationship in late January 2005. Jaime moved into her mother's apartment, but Mack continued to telephone her. He came to her mother's apartment on February 6, 2005, ostensibly just to "talk," but raped her. However, she did not immediately report the assault to police.
The following morning, while Jaime was in the shower, Mack entered her apartment and came into the bathroom. He was carrying a knife and glass pipe. He forcibly raped her twice and forced her to orally copulate him. After he left, Jaime called 911 and obtained a restraining order.
Jaime did not see Mack again until March 4, 2005. Mack continued to try to contact Jaime, and left several voice mails for her, claiming he was living in Alaska. Jaime was working with police trying to locate Mack.
On the morning of March 4, Mack came to Jaime's apartment and kicked in the door. She fled out the front door, wearing only jeans and a bra, but Mack caught her and forced her into her car while a neighbor who witnessed the abduction called police. Mack told her he had a weapon, and would hurt her if she tried to escape. He drove her to an unfamiliar neighborhood, where he parked. He twice forcibly raped her and twice forced her to orally copulate him.
Mack drove to a different location, where he got out of the car and allowed Jaime to leave. She drove to a telephone and called 911. Police found Mack a short time later trying to hide. At the police station, Mack expressed regret for what he had done, asked for a deal, and said Jaime would never testify against him.
B. The Defense
Mack testified the sexual encounter on February 6 was consensual. When he returned the following morning, he entered using a key Jaime had given to him and again had consensual sex. Jaime was angry with Mack because he had slept with her sister. Jaime had threatened to file a false police report asserting he had raped her. He returned her key to her and left.
When he returned on March 4, he accidentally broke a window while entering. He forced her into the car so they could talk. They ended up having consensual sex in the car. He denied making one of the statements to police attributed to him, but instead only stated he had "----ed up" and that Jaime would not testify against him because she loved him.
II
People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz).
Because Mack's claims on appeal arise out of the court's rulings on his last-minute motions to change counsel, we set forth the facts from the hearing on these motions before addressing Mack's claims.
A. The Motions
The Ortiz Motion
On November 10, 2005, the day set for trial, Mack asked for a Marsden hearing, asserting he had a conflict of interest with his retained attorney allegedly because Mack was "physically attracted to him." Mack wanted to discharge the attorney and "go pro per." The court advised Mack that Marsden was not the appropriate framework for his request because his present attorney was retained rather than appointed, and advised Mack he had the right under limited circumstances to fire his retained counsel and replace him either with another retained counsel or potentially to represent himself in propria persona (pro. per.). When the court asked if Mack's motion was to fire his retained attorney and proceed in pro. per., Mack responded, "That, and I . . . have another attorney lined up, hopefully, [who's] going to take on the case."
People v. Marsden (1970) 2 Cal.3d 118.
The court immediately asked, "before we go too much further into this . . ., if you either represent yourself or have another attorney, are you ready to proceed to trial today?" Mack responded that, "I'm going to hire Roland Haddad; and I know . . . he's going to need time to review the case," and Mack confirmed he was seeking to continue the trial. The court stated the request was untimely because the matter was scheduled for trial that day, and asked whether Haddad had agreed to represent Mack. Mack replied that Haddad would take over "[a]s long as I can get payment to him, but it's going to take [until] the end of this week," and that Haddad would need time to meet with Mack, obtain the files, and prepare for trial. The court then confirmed that on October 24, it had advised Mack's current attorney to discuss with him that, if he wished to change counsel, the new counsel would need to be ready to proceed on November 10 with trial; Mack's current counsel confirmed he had relayed that proviso to him. The court denied Mack's motion to continue the trial to obtain new counsel. The court specifically informed Mack that it would have granted his motion to replace counsel "if counsel was ready to go; but since we don't have that, it's uncertain" because "[y]ou haven't retained him. In fact, we don't know when that retention would occur, if it could occur. All of those variables make it very uncertain and do not constitute good cause for a continuance."
The Faretta Motion
Mack then stated he was "ready to represent myself then, pro per." However, when the court again asked if he was ready to proceed, Mack stated he was not ready and would "need at least another two weeks." The court reiterated that, although it would hear his request to represent himself in pro. per., it would not grant a continuance.
The court then asked about Mack's "physical attraction" to his retained attorney, and cautioned that, although it would not force him to keep his retained attorney, if Mack wished to represent himself he would need to start trial without a continuance because the request for the continuance was untimely. The court noted Mack's retained attorney was "extremely capable" and, considering the fact no continuance would be granted, the court asked whether Mack wished to proceed to trial with his retained attorney or instead to seek to represent himself. Mack stated he wished to represent himself, and the court then took a recess to have Mack fill out a Lopez waiver form before it would rule on his Faretta motion.
People v. Lopez (1977) 71 Cal.App.3d 568.
The court subsequently conducted a hearing to consider Mack's Faretta motion. It probed various inconsistencies between Mack's factual representations to the court (and to a probation officer) and the actual facts, the bizarre statement Mack made to a mental health professional, and an apparent threat made by Mack to spit in the prosecutor's face. The court denied the Faretta motion for the reasons we detail below.
B. Analysis of Ruling on the Ortiz Motion
Mack argues the trial court erroneously denied the Ortiz motion because it incorrectly applied the standards used to evaluate a request to replace appointed counsel under Marsden, and the error is reversible per se. Mack alternatively appears to argue that, to the extent the court applied the correct standard but denied the motion as untimely, the ruling was error.
Legal Framework
"[D]ue process of law, as it is expressed through the right-to-counsel provisions of the state and federal Constitutions, comprehends a right to appear and defend with retained counsel of one's own choice." (People v. Byoune (1966) 65 Cal.2d 345, 346.) Unlike a request to replace appointed counsel under Marsden, where the inquiry is focused on the adequacy of the representation being provided or the presence of an irreconcilable conflict likely to harm adequate representation (Ortiz, supra, 51 Cal.3d at p. 984), a defendant may replace retained counsel with or without cause. (Id. at p. 983.)
The right to replace retained counsel, however, "is not absolute" and must be balanced against countervailing interests, including the government's " 'interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time." ' '' (Ortiz, supra, 51 Cal.3d at pp. 983-984.) Although the trial court should accommodate a defendant's request to obtain private counsel of his or her choice, it is not required to do so where an accommodation will result " 'in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' " (People v. Courts (1985) 37 Cal.3d 784, 790 (Courts).) When deciding whether the denial of a continuance to obtain private counsel "was so arbitrary as to violate due process," we evaluate "the circumstances of [the] case" and " ' "particularly . . . the reasons presented to the trial judge at the time the request [was] denied." ' " (Id. at p. 791.)
Analysis
Mack's primary assertion is that the trial court applied the Marsden framework to assess his motion to replace retained counsel rather than applying the Ortiz framework, and this error is per se reversible. However, we have carefully reviewed the proceedings, and are convinced the trial court understood the standards of Ortiz rather than Marsden applied, and applied the correct framework. The court (1) specifically advised Mack that his reference to Marsden was inaccurate because his present attorney was retained rather than appointed and therefore Marsden was not the appropriate framework for his request, (2) explained Mack had the right to change counsel under limited circumstances, and (3) advised Mack that it would have granted his motion to replace counsel had new retained counsel been ready to go to trial. Although Mack cites passages in the record where the court noted Mack's current counsel was competent, the court's comments were made not in connection with the ruling on Mack's Ortiz motion, but were instead made after the court had already denied his Ortiz motion as untimely (a proper consideration under the Ortiz framework) and were made in connection with assessing his Faretta motion.
The court denied Mack's Ortiz motion because, although Mack had been forewarned that any substitution should be made (and counsel be ready to proceed) by the scheduled trial date, Mack nevertheless waited until the day of trial to seek a trial continuance (to allow new counsel to prepare for trial) as an essential adjunct of his Ortiz motion, and therefore the motion was untimely. Moreover, the court noted there was uncertainty when (or even if) new counsel would take over the case, which further militated against granting the continuance. The courts have recognized that requests for continuances that are made on the date of trial, as Mack's request was here, jeopardize the orderly administration of justice (Ortiz, supra, 51 Cal.3d at pp. 983-984), and trial courts have latitude to deny such requests. (People v. Molina (1977) 74 Cal.App.3d 544, 548 ["while generally a defendant is entitled to be represented by counsel of his own choosing, the right must be asserted in a timely fashion"]; People v. Jeffers (1987) 188 Cal.App.3d 840, 850 ["Where a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary."]; cf. Courts, supra, 37 Cal.3d at pp. 791-792 & fn. 4 [distinguishing request for continuance of trial in case made "a week before trial" from "eve-of-trial, day-of-trial, and second-day-of-trial requests" found to have been properly denied in other cases].) Additionally, at the time of Mack's request for a continuance, the trial court was informed there was only a possibility Mack would retain new counsel.
Mack asserts the motion was not untimely because it was made on October 24, 2005, several weeks before the scheduled trial date, and was only continued to November 10 because the court suspended proceedings to conduct competency proceedings under section 1368. However, the proceedings on October 24 contain no reference to a request to substitute retained counsel. Instead, the only discussion of acrimony was that, when Mack demanded that his attorney enter a guilty plea to all charges and ask for a maximum sentence, Mack's counsel resisted the demand to "[commit] legal suicide." At that hearing, Mack stated "[l]et's just do what I want to do, then. I want to go pro per today. I feel that I need to let go [of] my attorney." Although this statement may at best have been a nebulous suggestion that he was pursuing Faretta, it contains no mention of substituting counsel within the ambit of Ortiz.
A trial court has greater latitude to deny a request for a continuance for purposes of substituting private counsel when the prospect that a defendant will retain such counsel is "still quite speculative at the time the motion for continuance [i]s made." (Courts, supra, 37 Cal.3d at p. 791, fn. 3 [emphasizing the request in that case, which was accompanied by testimony establishing that "a lawyer-client relationship had been established" with prospective retained counsel, was distinguishable from requests in "cases which have upheld the denial of a continuance on the ground that participation by a particular private attorney was still quite speculative at the time the motion for continuance was made"].) Here, the proffer before the trial court regarding Mack's continuance request was that Mack had called Haddad the previous evening and was "going to hire" Haddad, who would take over "as long as I can get payment to him," suggesting on its face a new lawyer had not yet been retained and Haddad's purported agreement to represent Mack was conditional. Indeed, Mack's request was unaccompanied by any suggestion of when Haddad would be available or why Haddad had not yet been in contact with either the court or Mack's current counsel. (See People v. Johnson (1970) 5 Cal.App.3d 851, 858-859 [upholding trial court's denial of day-of-trial request for continuance to obtain private counsel where private counsel had not contacted court, and witnesses were ready, because "[t]o continue the trial at such a date on such nebulous grounds would adversely affect the orderly administration of justice"].)
We conclude the trial court applied the correct standard for Mack's request for a continuance to substitute new retained counsel, and did not abuse its discretion in denying the motion.
C. Analysis of Ruling on the Faretta Motion
Mack contends the trial court abused its discretion by denying his alternative Faretta motion to represent himself.
Legal Framework
A defendant has a federal constitutional right to self-representation in a criminal proceeding (Faretta, supra, 422 U.S. at p. 819), and Faretta applies to California criminal proceedings (People v. Windham (1977) 19 Cal.3d 121, 128 [a trial court must grant a defendant's Faretta motion "upon ascertaining that he [or she] has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be"]). Generally, "[a] trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make [the] request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, [the defendant] must make [the] request unequivocally. [Citations.] Third, [the defendant] must make [the] request within a reasonable time before trial. [Citations.]" (People v. Welch (1999) 20 Cal.4th 701, 729.)
Although a defendant has the right to self-representation, to invoke an unconditional right he or she must assert it within a reasonable time prior to the commencement of trial. (People v. Welch, supra, 20 Cal.4th at p. 729.) A motion not made within a reasonable time prior to trial is addressed to the sound discretion of the trial court. (People v. Marshall (1996) 13 Cal.4th 799, 827.) In exercising its discretion the trial court should consider the quality of counsel's representation, the defendant's prior proclivity to substitute counsel, the reason for the request, the stage of the proceedings, and the disruption or delay that might reasonably be expected to follow granting the motion. (Ibid.) Additionally, a trial court may deny the motion if it finds it is made for the purpose of frustrating the orderly administration of justice. (People v. Marshall (1997) 15 Cal.4th 1, 23.) Finally, when ruling on a motion made in close proximity to trial, the court may also consider whether the defendant's prior conduct has demonstrated a likelihood the proceedings would be disrupted in the event the motion for self-representation is granted. (People v. Jenkins (2000) 22 Cal.4th 900, 962-963.) This includes a consideration of defendant's manner and demeanor, any previous disruptive behavior, and any lack of control over his or her emotions that would demonstrate a risk of disruption of future court proceedings. (Ibid.) In exercising its discretion, the court may rely on a defendant's previous conduct and need not credit assurances made by the defendant at the time of the motion that he or she would not cause further disruption of the proceedings. (Ibid.)
When considering a Faretta motion made on the eve of trial, the court's discretion is "broad." (People v. Hardy (1992) 2 Cal.4th 86, 196.) On appeal, we "must give 'considerable weight' to the court's exercise of discretion and must examine the total circumstances confronting the court when the decision is made." (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)
Analysis
The court concluded Mack's motion was untimely because it was made on the day trial was scheduled to begin. Moreover, it was accompanied by a request for a continuance that the trial court had already rejected. Although there is no bright line test for determining the timeliness of a Faretta motion (People v. Clark (1992) 3 Cal.4th 41, 99), the courts have noted a motion made within three calendar days of the commencement of trial does not give rise to an unqualified right to self-representation, and a court has discretion to deny the motion as untimely. (People v. Rudd (1998) 63 Cal.App.4th 620, 626.) Indeed, even a motion made six calendar days prior to trial was made in such "close proximity" to trial that the decision whether to deny it as untimely was within the discretion of the trial court. (People v. Ruiz (1983) 142 Cal.App.3d 780, 789-791).
Mack argues his Faretta motion was timely because he first made the motion on October 24. However, there was substantial doubt at that hearing about Mack's competence, and the garbled request by Mack was apparently focused on allowing him to discharge his attorney so he could plead guilty to all charges and request the maximum sentence, not to take over trial of the case. A Faretta motion must be unequivocal "to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self representation." (People v. Marshall, supra, 15 Cal.4th at p. 22.) The demand for self-representation must be both articulate and unmistakable (id. at p. 21), and where "it is clear from the record that defendant never made an unequivocal assertion of his [or her] right to self-representation . . . [a] trial court [does] not err in declining to consider such a request." (People v. Valdez (2004) 32 Cal.4th 73, 99.) We are not persuaded by Mack's claim that the timeliness of the motion must be assessed based on his October 24 statements.
Mack argues the request was timely because, although he asked to continue the trial to allow him to prepare, he agreed to start trial without a continuance were his motion granted. However, a court could well conclude his offer to go to trial without preparation cast doubt on whether his Faretta request was "knowing and intelligent, having been apprised of the dangers of self-representation" (People v. Welch, supra, 20 Cal.4th at p. 729), and was attempting to set up the record for appeal by "playing 'the Faretta game' " (People v. Williams (1990) 220 Cal.App.3d 1165, 1170) for a subsequent appeal asserting his trial was unfair because he was denied time to prepare.
The court below carefully considered each of the factors relevant to a Faretta motion made on the eve of trial. It considered the quality of counsel's representation (People v. Marshall, supra, 13 Cal.4th at p. 827), and noted Mack's attorney was competent and prepared for trial. It assessed Mack's stated reason for the request, and concluded the purported conflict arising from his alleged physical attraction to counsel was "not credible to me [but instead] seem[s] to me to be patently false and manipulative." The court also evaluated whether Mack had a proclivity to substitute counsel, and concluded Mack did manifest a proclivity to try to manipulate the proceedings to delay trial (by apparently feigning mental illness and then refusing to cooperate with the doctor in the section 1368 proceedings and by seeking a continuance on the day of trial), which is a permissible consideration. (See People v. Marshall, supra, 15 Cal.4th at p. 23 [court may deny a motion if it finds it is made for the purpose of frustrating the orderly administration of justice].) The court also considered whether Mack's prior conduct raised a likelihood the proceedings would be disrupted were his motion for self-representation granted. (People v. Jenkins, supra, 22 Cal.4th at pp. 962-963.) The court noted he had delayed the proceedings by feigning mental illness and there was "reason to believe that that behavior could occur again," had shown a mercurial temperament and sullenly obstreperous behavior, and had threatened to spit on the prosecutor. These behaviors raised concerns that Mack would be unable to comport with appropriate courtroom behavior but would instead be disruptive were he representing himself. The court concluded Mack's course of conduct showed he was "playing a game with the court" and seeking to "delay these proceedings because the options are not great," which are proper considerations supporting denial of a Faretta motion. (People v. Williams, supra, 220 Cal.App.3d at p. 1170.)
The court noted this "problem" arose only on the day of trial, was inconsistent with Mack's heterosexual history, and that Mack made the claim with "a little grin on his face."
We conclude, considering all the circumstances, the denial of Mack's Faretta motion was not an abuse of discretion.
III
THE BLAKELY /CUNNINGHAM ISSUES
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
Mack contends the trial court erred by imposing the six-year upper term for his burglary conviction because the sentence was based on facts not found by a jury beyond a reasonable doubt or admitted by him in violation of Blakely and Cunningham. The People contend the claim is not preserved for appeal, and in any event there was no sentencing error.
At the sentencing hearing, the court imposed the upper term for Mack's burglary conviction (count 7), stating:
"I am imposing the upper term of six years on the burglary count. The reason for that--the additional circumstances in aggravation that I find that support that are the defendant does have a substantial criminal record. He's been committing crimes for years, despite his youth, against numerous types of victims. The crimes are increasing in seriousness and increasing in violence, and his pattern and history does indicate that the defendant is a serious danger to the community. For that reason, I'm imposing the upper term . . . ."
Mack asserts that selection of the upper term for his conviction on count 7 violated Cunningham because it was based on facts not found by the jury beyond a reasonable doubt. In Cunningham, the court concluded California's determinate sentencing law ("DSL") violates the Sixth Amendment because it "allocates to judges sole authority to find facts permitting the imposition of an upper term sentence[.]" (Cunningham v. California, supra, 127 S.Ct. at p. 870.) Relying on Cunningham, Mack contends the trial court's imposition of the upper term on count 7 in this case violated his Sixth Amendment right to a jury trial.
However, the California Supreme Court's recent decision in People v. Black, supra, 41 Cal.4th 799 (Black II) concluded a trial court may impose the upper term without offending Cunningham if the defendant "is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles." (Black II, at p. 813.) We conclude Black II controls this case and mandates affirmance of the sentence.
In Black II, the Supreme Court addressed the same issue raised by Mack here: whether imposition of the upper term violated the defendant's right to a jury trial. The Black II court noted that in Blakely v. Washington (2004) 542 U.S. 296 , the United States Supreme Court "explicitly recognized the legitimate role of 'judicial factfinding' in indeterminate sentencing, in which the judge may 'implicitly rule on those facts he deems important to the exercise of his sentencing discretion.' [Quoting Blakely, at p. 309.]" (Black II, supra, 41 Cal.4th at pp. 812-813.) Accordingly, the Black II court concluded 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." (Id. at p. 813.) In Black II, the court added that "[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense 'do not pertain to whether the defendant has a legal right to a lesser sentence--and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.' [Citation.]" (Ibid.)
After noting that "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term" under California's DSL, the Black II court concluded that "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' " for Sixth Amendment purposes. (Black II, supra, 41 Cal.4th at p. 813.) The Black II court then noted 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[,] [citations] [and that] 'recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.' [Citation.]" (Black II, at p. 818].) On that basis, the Black II court reasoned a defendant's criminal history alone may render him eligible for the upper term. (Ibid.)
The Black II court, after noting the probation report reflected the appellant in Black II had convictions both numerous (three misdemeanors and two felonies) and of increasing seriousness, next addressed the defendant's argument that, even if the fact of a prior conviction may not be a jury issue, he was nevertheless entitled to a jury trial (under Cunningham) on the issues of numerosity or increasing seriousness. The Black II court, rejecting the argument, explained the defendant "reads the 'prior conviction' exception too narrowly. [Citations.] As we recognized in [People v. McGee (2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres [v. U.S. (1998) 523 U.S. 224] exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.] [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' (Cal. Rules of Court, rule 4.421 (b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is 'quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court.' [Quoting McGee, supra, 38 Cal.4th at p. 706.]" (Black II, supra, 41 Cal.4th at pp. 819-820, fn. omitted.)
Here, the court specifically noted Mack's prior convictions were numerous, and increasing in seriousness and violence. Because Mack's numerous conviction were alone a sufficient basis to make him eligible for the upper term, we are compelled under Black II to conclude Mack suffered no Sixth Amendment violation by the trial court's exercise of its discretion in selecting the upper term for count 7 in his case based on facts determined by the trial court. (Black II, supra, 41 Cal.4th at p. 820 .)
DISPOSITION
The convictions are affirmed. The judgment is reversed as to the execution of sentence on counts 1and 9 pursuant to section 654, and the matter is remanded for resentencing and for correction of the abstract of judgment.
WE CONCUR: O'ROURKE, J., IRION, J.