Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Super. Ct. No. NA066411, Los Angeles County.
Randi Covin, 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, Mary Sanchez, Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Azeez Momoh appeals the judgment entered after a jury convicted him of attempted willful, deliberate, premeditated murder (Pen. Code, §§ 664/187, subd. (a)); first degree burglary (§§ 459, 460, subd. (a)); assault with a semiautomatic firearm (§ 245, subd. (b)); threatening a witness (§ 140, subd. (a)); dissuading a witness by force or threat (§ 136.1, subd. (c)(1)); two counts of false imprisonment by force or violence (§ 236); misdemeanor false imprisonment (§ 237, subd. (a)); and possession of a firearm by a felon (§ 12021, subd. (a)(1)). Momoh admitted three prior convictions as to the section 12021, subdivision (a)(1) charge, and also admitted the allegations that he had served three prior prison terms (§ 667.5, subd. (b)). The jury also found true the allegations that Momoh personally inflicted great bodily injury in committing the attempted murder (§ 12022.7, subd. (a)), and that he personally used a firearm in committing the assault with a firearm and one count of false imprisonment, and in threatening and dissuading a witness (§ 12022.5). Prior to sentencing, the trial court dismissed count 7 (false imprisonment of Rian Frazier) due to insufficient evidence (§ 1118.1). Momoh was sentenced to a total term of life with the possibility of parole plus 23 years two months, consisting of: life for the attempted murder plus three years for the great bodily injury enhancement, a consecutive upper term of nine years for the assault with a firearm count plus an additional 10 years for the firearm enhancement, eight months (one-third the midterm) for the false imprisonment of Marquis Smaulding, and six months for the misdemeanor false imprisonment. He contends (1) the evidence is insufficient to support his attempted murder conviction; (2) the evidence is insufficient to support his conviction for felony false imprisonment of Marquis Smaulding; (3) the trial court abused its discretion in admitting certain gang evidence pursuant to Evidence Code section 352; (4) the court violated its sua sponte duty to instruct on the lesser included offense of attempted voluntary manslaughter; (5) the court had a sua sponte duty to give a pinpoint instruction on provocation; and (6) he was sentenced to the upper term in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. We affirm.
All statutory references are to the Penal Code, unless otherwise noted.
FACTS
At about 11:00 p.m. on May 6, 2005, Richelle Tate, also known as "Bird," and her roommates, Jennifer Hardin and Rian Frazier, left Club 49 in Long Beach. As they were "hanging out" with a group of people in the parking lot, Momoh, also known as "Big Sag," drove up with codefendant Tahnesia Hall. Tate, who knew Momoh, said "hi" and asked, "what's up?" Momoh did not respond. Tate asked him why he was not speaking to her, but he said nothing and kept walking. Someone in the group said "that's his girl in the car." Hall got out of the car and started arguing with Tate and Frazier. This led to the women screaming and calling each other "bitches." Tate took off her shoes and put them in Hardin's car, either because her feet hurt or because she anticipated a fight. Frazier, seeking to end the confrontation, pulled Tate toward the club across the street. Tate was denied entry to the club because she was barefoot, so she went back to the parking lot to retrieve her shoes. Frazier went to get the car keys from Hardin, who had already entered the club.
Hall is not a party to this appeal.
As Tate was walking toward Hardin's car, Momoh pushed her, causing her to fall on her back. Frazier had returned with the car keys and observed the incident. Frazier asked Momoh what was happening, but he did not respond. Hall tried to come toward Frazier, but Momoh pushed her back. Frazier then saw Momoh repeatedly hit Tate as she lay prone on the ground. Another witness, Kelli Jackson, saw Tate and Momoh "go down" after Momoh punched her with his fist on her upper body. According to Jackson, Momoh continued punching Tate after she fell.
When Tate got up, a witness told her she was bleeding. Blood was running down Tate's chest, hands, and arms. She took off her shirt and saw that her left breast was severely injured. Frazier wanted to take Tate to the hospital, but Tate refused to get in the car. Instead, she went across the street and stood outside the club. Tate testified that she was hiding from the police because she had been stabbed before and just wanted to go home. The police officers and paramedics who responded to the scene found Tate. One of the police officers testified that he saw fatty tissue hanging from one of Tate's breasts. Tate was subsequently hospitalized for four or five days for a punctured and collapsed lung and numerous cuts all over her body that required stitches and resulted in scarring.
Three days later, and while Tate was still in intensive care, Momoh and Hall went to Tate's house during the early morning hours. Marquis Smaulding, who lived at the house, was lying on the couch trying to sleep when he heard someone attempting to open the front door. Smaulding got up, opened the door, and saw Momoh and Hall standing there. Smaulding did not know either of them. Momoh asked for Jennifer Hardin. When Smaulding turned to get her, Momoh and Hall walked in. As soon as they were inside, Hall asked, "Where is the white bitch at, Jennifer, the one that's doing all the talking?" Momoh grabbed Smaulding by the arm and told him to sit on the couch. Smaulding complied. Tate's seven-year-old son came into the living room and was also told to sit down.
Momoh went to Frazier's bedroom, finding her in bed with Emmit Love. Momoh turned on the light and pointed a gun about three to five inches from Frazier's head. Momoh said, "I didn't mean to hurt your family," that he did not stab Bird, that "you going around saying my name," and that he was "not going down for that shit" if Bird died. He also repeatedly asked where that "bitch" Hardin was. Smaulding attempted to get up and run outside, but Hall, who was standing at the door, told him to sit down.
Long Beach Police Detective Kevin Nelson, who was assigned to gang enforcement, interviewed various witnesses to Tate's stabbing and was given the name Big Sag from the Rolling 20's Crips gang. Detective Nelson knew from prior contacts that Momoh was Big Sag. Frazier and Smaulding both identified Momoh from a photographic lineup. Hall was also identified and discovered to be living with Momoh. A .38-caliber bullet and two .357-caliber bullets were subsequently discovered during a search of their home.
DISCUSSION
I.
Sufficiency of the Evidence
A.
Attempted First Degree Murder of Victim Tate
Momoh contends the evidence is insufficient to support his conviction for attempted willful, deliberate and premeditated murder. In reviewing this claim, we decide only whether "''"any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt.'" [Citations.]' [Citation.] Unless it is clearly shown that 'on no hypothesis whatever is there sufficient substantial evidence to support the verdict' the conviction will not be reversed. [Citation.]" (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.)
The evidence, viewed in the light most favorable to the judgment (People v. Quintero, supra, 135 Cal.App.4th at p. 1161), is sufficient to support the conviction. Momoh refers us to facts from which the jury purportedly could have found that he attempted to kill his victim while in the heat of passion and was thereby only guilty of the lesser offense of voluntary manslaughter (§ 192), but those facts are irrelevant to our review. While he argues that he was provoked by Tate's words and the manner in which they were conveyed to him, no reasonable juror could have found that Tate's conduct in this regard was "'. . . sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] . . .'" (People v. Manriquez (2005) 37 Cal.4th 547, 583-584.) Even if Tate was drunk, confrontational, calling Momoh's girlfriend a "bitch," and acting in a generally aggressive manner, that evidence would not support, much less compel, Momoh's assertion that Tate "accosted" him "in public" to such an extent that an ordinary person of average disposition would feel compelled to respond as he did. Momoh hit his unarmed victim hard enough to knock her down, got on top of her and stabbed her twice in the chest with enough force to puncture a lung and cut one of her breasts so severely that a responding officer could see fatty tissue hanging out of it. Cuts to the victim's hand, shin, and thigh required stitches and have left her scarred. The method and severity of Momoh's attack is sufficient by itself to support the jury's finding that he intended to kill Tate and pursued that intent with malice, premeditation and deliberation. (People v. Bolden (2002) 29 Cal.4th 515, 561 ["In plunging the knife so deeply into such a vital area of the body of an apparently unsuspecting and defenseless victim, defendant could have had no other intent than to kill"]; People v. Memro (1995) 11 Cal.4th 786, 863-864 [recognizing that "the method of killing alone can sometimes support a conclusion that the evidence sufficed for a finding of premeditated, deliberate murder"].)
B.
Felony False Imprisonment of Victim Smaulding
Momoh also contends his conviction for the felony false imprisonment of Smaulding must be reversed because the evidence is insufficient to sustain the finding that the crime was committed by violence or menace, as contemplated by section 237, subdivision (a). We reject this contention.
False imprisonment, which is defined in section 236 as "the unlawful violation of the personal liberty of another," constitutes a felony when the crime is "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).) As the jury was correctly instructed, violence in this context is defined as the use of physical force that is greater than the force reasonably necessary to restrain the victim, while menace is an express or verbal threat of harm conveyed by words or conduct. (CALCRIM No. 1240; accord, People v. Babich (1993) 14 Cal.App.4th 801, 806.) The evidence, viewed in the light most favorable to the judgment, indicates that Momoh entered Smaulding's residence uninvited, grabbed him by the arm and ordered him to sit on the couch. Smaulding testified that he complied with the command because he was afraid that Momoh would harm him if he did not. Hall remained at the door when Momoh left the room so that Smaulding could not escape, and she told him to sit down and not look at her "fucking face" after he attempted to get up and run out the door. While sitting on the couch, Smaulding heard Momoh telling Frazier he was not "going down" for the attack on Tate. Smaulding also testified that he continued to sit on the couch until Momoh left because he feared he would "probably get shot, stabbed, get chased down, or maybe them [sic] get killed thinking that I would run and tell." This evidence is sufficient to support the finding that Momoh falsely imprisoned Smaulding by means of menace as contemplated by section 237, subdivision (a).
Momoh relies on People v. Matian (1995) 35 Cal.App.4th 480 (Matian), for the proposition that merely grabbing his victim by the arm and telling him to sit down is insufficient evidence of false imprisonment by menace. In Matian, the victim was sexually assaulted by the defendant in an office building. When she attempted to leave, the defendant "grabbed her arm and yelled at her not to go." (Id., at p. 485.) After the victim sat down on a chair, the defendant went to a nearby office where the victim could see him and sat down. Whenever the victim got up to leave, the defendant glared at her and got up as if he was coming after her. (Ibid.) In reversing the defendant's conviction for felony false imprisonment, Division Seven of this court concluded that the defendant's actions could not constitute menace because he did not verbally threaten harm to the victim or use a deadly weapon. (Id., at pp. 486-487.)
Momoh's opening brief fails to mention another decision in which our colleagues in Division Four expressly disagreed with Matian on this point. (People v. Castro (2006) 138 Cal.App.4th 137 (Castro).) That court reasoned: "We have trouble understanding the conclusion the Court of Appeal reached in Matian. While the opinion does not discuss the underlying sexual crimes, it is clear that the false imprisonment followed immediately after the forcible sexual assaults during which appellant squeezed the victim's breast so hard as to cause her pain and possibly even bruising. Thereafter, the perpetrator yelled at the victim 'nothing happened,' attempting to intimidate her into not reporting the incident. He then told her to wash her face and she took a seat nearby, within view of the perpetrator who was in his office. When the victim attempted to leave, the perpetrator glared at her and got out of his chair as if he was going to approach her. Given the immediately preceding sexual assaults, and the command to her that 'nothing happened,' it is reasonable to conclude the victim was intimidated by the perpetrator. In fact, she testified that she was afraid and did not want him to touch her again. We have no problem with concluding the evidence addressed in the published portion of the opinion supported the conviction for felony false imprisonment by menace, if not violence. Thus, we do not agree with the result in Matian, or with appellant's argument that comparison with the facts in Matian requires reversal of his conviction for felony false imprisonment." (Castro, at p. 143.)
We agree with Castro's analysis. Menace, as defined in section 237, subdivision (a), does not require a finding that the defendant either verbally threatened the victim or used a deadly weapon. Rather, the prosecution need only prove that the defendant, through words or actions, conveyed an express or verbal threat of harm in committing the crime of false imprisonment. (CALCRIM No. 1240; People v. Babich, supra, 14 Cal.App.4th at p. 806.) As we have explained, a review of the evidence in the light most favorable to the judgment compels the conclusion that Momoh's conviction for felony false imprisonment is supported by substantial evidence.
II.
Gang Evidence
Frazier testified that she gave the police a false name when she reported Tate's stabbing because one of the women she was with that night "hangs out" with the Rolling 20's Crips gang. Frazier explained that she was afraid there might be consequences if members of the gang discovered that she had cooperated with the police. The trial court thereafter overruled Momoh's relevance and Evidence Code section 352 objections to any further evidence relating to the gangs. The court reasoned that "[g]iving a false name, distancing herself from her account is a serious material issue as to her credibility. The mere fact she didn't want an acquaintance to know she was cooperating with the police, it is kind of a weak explanation but doesn't probably ring true. Because the truth is she believed Mr. Momoh was a Rolling 20, and that was the real nexus. So it's highly probative. Otherwise, the D.A. does not get a fair trial because a juror might decide to discredit everything she says because that's not a real strong explanation for giving a false name."
The prosecutor subsequently elicited testimony from Frazier indicating that she was afraid of the gang because Momoh associated with its members. That testimony prompted the trial court to interject and admonish the jury: "This testimony is admitted on the issue of this witness's state of mind, not for character evidence about the defendant and the gang, only as to her state of mind and her motive for doing or not doing things in this case." Detective Nelson later testified that "Big Sag," who several witnesses to the stabbing identified as the perpetrator, was the name Momoh had been given through his association with the Rolling 20's Crips.
Momoh argues that the court abused its discretion in admitting this evidence indicating that he was a gang member because it should have been excluded as substantially more prejudicial than probative under Evidence Code section 352. To make this showing, Momoh must demonstrate that the court's decision to admit the evidence "exceeds the bounds of reason." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) He makes no such showing. While he argues that "the only possible function of the gang evidence in this case was to show appellant's criminal disposition," the evidence was plainly relevant. Frazier's brief testimony on this issue was relevant to her credibility, and the court immediately admonished the jury on its limited use. Detective Nelson's testimony was relevant to prove that Momoh was the individual witnesses had identified as Big Sag. At the conclusion of the trial, the jury was again instructed that "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." (CALCRIM No. 303.) We presume the jury followed the court's admonishment and concluding instructions. (People v. Thornton (2007) 41 Cal.4th 391, 441.)
Momoh complains that the prosecution elicited Frazier's testimony regarding the giving of a false name, and asserts that "[d]efense counsel would surely have agreed to avoid the subject in order to keep out the gang evidence." He also believes Frazier's initial explanation for giving a false name was sufficient to rehabilitate her credibility, and contends that "[i]f the prosecutor was still dissatisfied with the situation she herself had created, the jurors could have been instructed to disregard the false report in evaluating Frazier's credibility." Neither point is well taken. Momoh's citation to the record does not support any inference that the prosecutor was aware that defense counsel would have agreed to refrain from attacking Frazier's credibility on this point on cross-examination. (Compare People v. Avitia (2005) 127 Cal.App.4th 185, 193-194 [trial court abused discretion in allowing gang evidence to prove the defendant possessed firearms because the issue was undisputed, the evidence was cumulative, and the defendant had offered to stipulate that one of the weapons belonged to him].) The record is also devoid of any evidence that counsel ever proposed the limiting instruction he now claims could have been given, and Momoh does not argue, much less establish, that the court should have issued such an instruction sua sponte. Besides, Momoh overlooks the fact that Frazier's testimony was not the only evidence of Momoh's gang affiliation. Detective Nelson's testimony identifying Momoh as Big Sag was plainly relevant to prove his identity as the perpetrator of the stabbing, particularly since Momoh was pursuing a mistaken identity defense. Moreover, there is no indication that any other witness was prepared to testify that Momoh was Big Sag, nor did Momoh ever offer to stipulate to that fact. His citation to cases finding reversible error in admitting cumulative or minimally relevant gang evidence are therefore inapposite. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-906; Avitia, supra, at pp. 193-194.)
In any event, any error in admitting the evidence was harmless. As we have noted, nothing in the record undercuts the presumption that the jury followed the trial court's admonition and concluding instructions to consider the evidence of Momoh's gang affiliation for the limited purpose for which it was admitted. (People v. Thornton, supra, 41 Cal.4th at p. 441.) Moreover, the evidence of Momoh's guilt was overwhelming. Because it is not reasonably probable that Momoh would have received a more favorable verdict in the absence of the challenged evidence, its admission, even if erroneous, would not compel reversal. (Evid. Code, § 353, subd. (b); People v. Valdez (1997) 58 Cal.App.4th 494, 511; People v. Watson (1956) 46 Cal.2d 818, 836.)
III.
Sua Sponte Duty to Instruct on Voluntary Manslaughter
Momoh also contends that the court violated its sua sponte duty to instruct the jury on attempted voluntary manslaughter as a lesser included offense of attempted murder. We disagree. Trial courts are required to instruct sua sponte on lesser included offenses when the evidence presents a question whether all the elements of the charged offense are present, and there is evidence that would justify conviction of the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) The court has a sua sponte duty to give such instructions only when the evidence supporting a finding on the lesser offense is substantial enough to merit the jury's consideration. (Id., at p. 154.) Momoh's defense was that he was not the person who stabbed Tate. "Obviously his claim that an instruction for [attempted] manslaughter should have been given [sua sponte] is logically incompatible with the claim that he was not the person who committed the crime." (People v. Dixon (1961) 192 Cal.App.2d 88, 91.)
Moreover, "'[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.' [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 392; People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on other grounds in People v. Breverman, supra, 19
Cal.4th at p. 165.) In convicting Momoh of attempted first degree murder, the jury necessarily found that he not only had the requisite specific intent to kill Tate when he stabbed her, but also that he pursued that intent with premeditation or deliberation. In so finding, the jury necessarily decided that the crime was not committed under the heat of passion, such that Momoh was guilty of only attempted voluntary manslaughter. Accordingly, any error in failing to instruct sua sponte on attempted voluntary manslaughter was harmless. (Chatman, supra, at p. 392; Breverman, supra, at p. 165; People v. Watson, supra, 46 Cal.2d at p. 836.)
Momoh acknowledges we are bound by our Supreme Court's holding that the failure to instruct on lesser included offenses is subject to the Watson harmless error standard of review. (People v. Breverman, supra, 19 Cal.4th at pp. 165, 176; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) For purposes of federal review, however, he preserves his claim that the alleged error must be deemed harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, because it violated his constitutional rights to due process and a jury trial.
IV.
CALCRIM No. 522 and CALJIC No. 8.73
Momoh also contends the trial court violated its sua sponte duty to instruct the jury pursuant to CALCRIM No. 522 and CALJIC No. 8.73 that provocation could negate the premeditation and deliberation necessary to find him guilty of attempted first degree murder. We disagree. Because CALCRIM No. 522 and CALJIC No. 8.73 are pinpoint instructions, the court had no duty to give them on its own motion. (People v. Rogers, supra, 39 Cal.4th at pp. 878-880; People v. Mayfield (1997) 14 Cal.4th 668, 778-779.)
CALCRIM No. 522 provides: "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]" CALJIC No. 8.73 provides: "If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation." The California Supreme Court has recognized that the instructions are substantially the same. (People v. Rogers (2006) 39 Cal.4th 826, 878-879.)
Momoh nevertheless asserts that the entire charge was rendered misleading by the absence of these instructions because the jury was instructed pursuant to CALCRIM Nos. 906 and 917 that provocation which did not threaten immediate harm was not a defense to the charged crimes. This claim is without merit. CALCRIM Nos. 960 and 917 expressly pertain only to the charge of simple battery as a lesser included offense of the charged crime of attempted murder, and there is nothing from which it could be inferred that the jury disregarded this limitation. Moreover, we have already explained that no reasonable juror could have found that the victim's conduct was sufficiently provocative to justify her stabbing. (See People v. Manriquez, supra, 37 Cal.4th at pp. 583-584.) While Momoh claims the prosecutor incorrectly argued that these instructions applied to the charge of attempted murder, the jury was also instructed pursuant to CALCRIM No. 200 to disregard any comments from the attorneys that conflicted with the instructions. Momoh also takes issue with the prosecutor's argument that a "rash and impulsive" act could be deliberate and premeditated, yet he ignores the fact the jury was expressly instructed pursuant to CALCRIM No. 601 on the attempted murder charge that "[a] decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated." We presume the jury followed the court's instructions and disregarded the prosecutor's conflicting comments on the law. (People v. Thornton, supra, 41 Cal.4th at p. 441.)
CALCRIM No. 960 is entitled "simple battery" and provides that "[i]t is no defense to this crime that the defendant was responding to a provocative act that was not a threat or an attempt to inflict physical injury. Words alone, no matter how offensive or exasperating, are not an excuse for this crime." Pursuant to CALCRIM No. 917, the jury was also instructed that "[w]ords, no matter how offensive, and acts that are not threatening, are not enough to justify an assault or battery. [¶] However, if you conclude that [Tate] spoke or acted in a way that threatened [Momoh] with immediate harm or an unlawful touching, you may consider that evidence in deciding whether [Momoh] acted in self-defense."
Momoh's reliance on People v. Valentine (1946) 28 Cal.2d 121 (Valentine), is misplaced. The conviction in Valentine was reversed due to a "host of instructional errors" that were not present in this case. (People v. Rogers, supra, 39 Cal.4th at pp. 879-880.) Moreover, our Supreme Court has explained that "Valentine does not stand for the general proposition that the standard heat-of-passion voluntary manslaughter instructions are always misleading in a homicide case where the jury is instructed on premeditated murder and there is evidence of provocation, or that such manslaughter instructions always must be accompanied by instructions on the principle of inadequate provocation set out in CALJIC No. 8.73. In the absence of instructional errors such as were present in Valentine, the standard manslaughter instruction is not misleading, because the jury is told that premeditation and deliberation is the factor distinguishing first and second degree murder. Further, the manslaughter instruction does not preclude the defense from arguing that provocation played a role in preventing the defendant from premeditating and deliberating; nor does it preclude the jury from giving weight to any evidence of provocation in determining whether premeditation existed." (Rogers, supra, at p. 880.) For the same reason, it cannot be said that the jury in this case was misled by the standard instructions relating to the charge of simple battery as a lesser included offense of attempted first degree murder.
V.
Imposition of Upper Term
Momoh finally contends that he was sentenced to the upper term on the assault with a firearm count in violation of Cunningham v. California, supra, 127 S.Ct. 856. While we reject the People's assertion that Momoh forfeited this claim by failing to raise it in the trial court (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4), the claim fails on the merits. An upper term sentence may be imposed based on a defendant's criminal history and probation status without a jury finding. (People v. Black (2007) 41 Cal.4th 799, 818.) Moreover, the existence of a single aggravating sentencing factor is sufficient to render a defendant eligible for the upper term of imprisonment: "[S]o 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 imposing the upper term, the court relied in part on Momoh's prior prison terms, as well as the fact that he was on probation when he committed this crime. The sentence therefore comports with Momoh's Sixth Amendment rights.
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J., Richard R. Romero, Judge