Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge., Super. Ct. No. 06CM1426.
Betsy S. Kimball, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J.; Wiseman, J.; and Levy, J.
INTRODUCTION AND GENERAL FACTS
Appellant Donald R. McQuiller was arrested at a Wal-Mart store after obtaining a cash refund of $203.58 for a foam mattress. McQuiller had not paid for this mattress and it had not left the store. McQuiller testified that he did not receive any money in exchange for the mattress when he gave it to the clerk at the customer service counter.
McQuiller was convicted after jury trial of commercial burglary (count I) and petty theft with a prior theft conviction (count II). (Pen. Code, §§ 459, 666.) He was sentenced to the upper term of three years’ imprisonment for count I; the upper term was imposed and stayed for count II.
Appellant argues that the trial court erroneously admitted of evidence of uncharged misconduct. Also, he cites imposition of the upper term as Blakely/Cunningham error. Neither argument is persuasive; we will affirm.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 549 U.S. ___ (Cunningham).
DISCUSSION
I. Appellant’s claim that evidence of uncharged misconduct should have been excluded because it did not satisfy all of the Ewoldt criteria was waived because this objection was not raised in the trial court.
People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt).
In relevant part, appellant orally motioned in limine to exclude the following evidence: (1) on March 28, 2006, appellant exited the Wal-Mart store with dog food that he had not purchased and (2) on April 2, 2006, a power drill, a sales receipt for a power drill and a refund receipt for a power drill were all found in appellant’s vehicle (the uncharged misconduct evidence). Defense counsel argued that the uncharged misconduct evidence should be excluded pursuant to Evidence Code section 352 as excessively prejudicial. The court overruled the objection, concluding “that the probative value of that evidence to show both intent and a common scheme or plan of stealing by the use of these receipts outweighs any undue prejudice or any tendency to confuse the issues, and it outweighs it substantially.”
Unless otherwise specified all statutory references are to the Evidence Code.
Appellant argues that admission of the uncharged misconduct evidence constitutes reversible error because “the trial court did not conduct the three-point evaluation required under People v. Ewoldt, supra, 7 Cal.4th at p. 406, and its progeny.” He asserts that the challenged evidence only met one of the three Ewoldt criteria. We summarily reject this contention because objection was not interposed on this ground below; therefore, the issue was waived.
It is a well established principle of jurisprudence that only points that were raised and ruled on in the trial court are considerable on appeal. (§ 353; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) To preserve an evidentiary issue for appellate review, timely objection must have been interposed on the same ground during trial. (People v. Hill (1992) 3 Cal.4th 959, 989.)
Although defense counsel challenged admission of the uncharged misconduct evidence, he objected on a different ground than the one presented on appeal. Defense counsel acknowledged that he was aware the People were seeking to admit the uncharged misconduct evidence pursuant to section 1101, subdivision (b). He did not argue that the evidence failed to meet the requirements for admission under section 1101 or assert that it failed to satisfy all the Ewoldt criteria. Rather, defense counsel unsuccessfully argued that the uncharged misconduct evidence should be excluded pursuant to section 352. Since the evidentiary claim presented in this forum was not raised and ruled on during trial, the point was not preserved for appellate review. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015.)
II. Imposition of the upper term was not Blakely/Cunningham error.
The probation report sets forth appellant’s criminal history, which began in 1995. He has suffered three prior drug-related convictions, one grand theft conviction, four traffic infractions and one conviction for driving with a suspended license. Also, he violated the terms of his probation on many occasions. Four aggravating factors were listed: (1) the manner of the crime indicated planning, sophistication or professionalism; (2) appellant’s prior convictions are numerous or of increasing seriousness; (3) appellant was on probation when the crime was committed; and (4) appellant’s prior performance on probation was unsatisfactory. No mitigating factors were listed.
Appellant did not dispute the accuracy of the probation report’s recitation of his criminal history or probation status.
The court imposed the upper term for count I. It explained this sentencing choice, as follows:
“In looking at the criteria under Rule 4.414, the Court would note that the crime itself was relatively sophisticated and professional in the manner of its execution and clearly well planned. The defendant has a significant prior record with multiple failures to appear and violations of probation. The circumstances would suggest that he is not a suitable candidate for a grant of probation in this case.
“With regard to sentencing choices, the Court knows the defendant has an extensive prior criminal record and history of probation violation. There are no circumstance in mitigation that are worthy of mention.”
In People v. Black (2007) 41 Cal.4th 799 (Black II) our Supreme Court determined that the presence of one valid aggravating factor, such as a defendant’s criminal history, established in a constitutional manner renders a defendant eligible for the upper term sentence and that “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.” (Id. at p. 812.)
Notwithstanding Black II, appellant argues that imposition of the upper term infringed his federal constitutional jury trial right as interpreted in Blakely/Cunningham because the only evidence presented to the jury about his prior criminal history concerned his 2001 theft conviction. He argues that the theft conviction cannot be used as an aggravating factor supporting imposition of the upper term because it already was used to prove an element of petty theft with a prior count.
We reject this argument because Black II concluded that a defendant is not entitled to a jury trial on the aggravating circumstance of his prior criminal history. The trial judge may determine whether a defendant has suffered prior convictions and whether those convictions are numerous or of increasing seriousness. (Black II, supra, 41 Cal.4th at pp. 819-820.) In making these determinations, the trial judge may rely on the probation report. In relevant part, our Supreme Court wrote:
“The trial court is presumed to have read and considered the probation report. [Citation.] Its conclusion that defendant’s prior convictions were numerous or of increasing seriousness is supported by the probation report, whose recitation of defendant’s criminal history was not challenged by defendant in the trial court.” (Black II, supra, 41 Cal.4th at pp. 818-819, fn. 7.)
Following and applying Black II, we conclude that the trial court was permitted to consider all of appellant’s criminal convictions as set forth in the probation report. (Black II, supra, 41 Cal.4th at p. 820.)
Also, the court was entitled to consider appellant’s status as a probationer when he committed the current offenses and his prior unsatisfactory performance on probation and parole. Although the question of whether a defendant’s parole status falls within the prior conviction exception was not directly presented in Black II, the California Supreme Court’s construction of the prior conviction exception leads us to conclude that our Supreme Court would consider a defendant’s status on parole to be a “fact that increases the penalty for a crime beyond the prescribed statutory maximum” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490), but that need not be submitted to a jury. (See U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [prior conviction exception extends to subsidiary findings such as probation status]; People v. Yim (2007) 152 Cal.App.4th 366, 371 [parole status falls within prior conviction exception].)
Appellant’s recidivism rendered him constitutionally eligible for imposition of the upper term. (Black II, supra, 41 Cal.4th at p. 818.) We do not find a Sixth Amendment violation on the facts presented in this case.
DISPOSITION
The judgment is affirmed.