Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct.No. INF054543 Harold W. Hopp, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Marvin E. Mizell, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant, Victor Pineda, Jr., was charged with one count of burglary (Pen. Code § 459, count 1)), one count of vandalism (§ 594, subd. (b)(1) (count 2)), one count of receiving stolen property (§ 496, subd. (a) (count 3)), and one count of grand theft (§ 487, subd. (a) (count 4)). The People voluntarily dismissed count 4. It was further alleged that all counts were “for the benefit of, at the direction of, and in association with a criminal street gang, VCR 52, with the specific intent to promote, further and assist in any criminal conduct by gang members, within the meaning of Penal Code section 186.22, subdivision (b).” Following a jury trial, defendant was found guilty on the three remaining counts. The jury also returned a true finding on the gang enhancement. Defendant was sentenced to six years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals his burglary and vandalism convictions on the following grounds: (1) the evidence was insufficient; (2) the trial court committed reversible error by failing to instruct the jury sua sponte on the offense of accessory after the fact; (3) the trial court erred by sentencing defendant to the upper term for the gang enhancement; and (4) the abstract of judgment incorrectly reflects defendant’s actual sentence.
II. STATEMENT OF FACTS
At approximately 12:30 a.m. on May 18, 2006, Marciela Brown (Brown), who worked as a janitor and cleaning person at Eagles Peak Charter School Palm Street Academy (school), finished waxing the floors and left the school. When she returned to the school at approximately 6:00 a.m., she found the secretary’s desk and office of the facilitator, Salvador Fabian Garcia, (Garcia) in disarray and “destroyed.” Brown immediately notified Garcia, who in turn notified the Indio Police Department. Brown observed footprints on the floor, indicating to her that someone had walked on school grounds within 45 minutes to an hour after her departure.
Brown testified that the floor wax takes approximately 45 minutes to dry.
Garcia observed footprints in the hallways and outside the school. Garcia noted that a projector, digital camera, and a lock box with approximately 20-30 sets of keys were missing from his office, as well as approximately $400, which had been taken from a locked cabinet drawer. Garcia listed several other items that were missing from other areas of the school, including two microscopes, a Polaroid camera, two duffel bags, flashlights, a box of highlighters, and the lost-and-found bin containing compact disc (CD) players, cell phones, and other miscellaneous items. Desks throughout the classrooms were rummaged, hallway walls and bathroom mirrors had “Coachella,” “VC,” and “VC 52” graffiti, a perimeter window was broken, and two doors were kicked in.
Deputy Martin Alfaro testified that based on his experience and training with gangs in the area, the graffiti symbols belong to the Vario Coachella Rifas (VCR), a criminal street gang based out of Coachella.
Officer Bryan Fraynham of the Indio Police Department surveyed the scene with Garcia. Three latent fingerprints were recovered but received no matches. Officer Fraynham took particular notice of the footprints left on the kicked-in doors, as well as the cement block used to break the window. Outside that window, Officer Fraynham noted the point of entry, footprints matching those found inside the school, and more “Coachella 52” and “VC 52” graffiti. The officer followed the footprints across the yard and observed a cord, later determined to belong to one of the stolen CD players, stuck to the fence. The footprints ended at the residence of Alvarro Martinez (Martinez), a former student and VCR 52 member. The officer noted similar “Coachella,” “52,” “VC 52” graffiti on a fire hydrant and door frame, as well as on the exterior walls of the residence.
Once police backup arrived, Officer Fraynham knocked on the door, and defendant answered. Observing Martinez and Victor Maurillo (Maurillo) inside the house, Officer Fraynham requested to speak with a parent or legal guardian. Defendant responded that “he was the oldest and he was in charge.” All three individuals consented to officers entering the house to discuss the school break in. Maurillo’s shoes matched the footprints found at the crime scene. Maurillo was placed under arrest and led officers to some stolen items in his room. Officers entered Maurillo’s room and noted “VCR 52” graffiti and recovered a cell phone, approximately $194 in cash, and some Polaroid pictures. The pictures depicted defendant, Martinez, Maurillo and others posing with money and flashing gang signs. The search also uncovered two radios, a portable CD player and the school’s lost-and-found bin in the trash, along with a pair of sunglasses. Some of the seized items had been tagged with “VC,” “Coachella,” and “52.” Officers also found a broken cement block in Martinez’s backyard that matched the piece found at the school.
Deputy Alfaro opined that based on his experience and after reviewing the graffiti, pictures, and tattoos on their persons, defendant, Martinez and Maurillo were affiliated with the VCR 52.
Deputy Alfaro gave his expert opinion that the signs being flashed were those of the VCR gang.
Defendant was arrested, and after conducting a search of his person, the officers found two $50 bills, matching denominations of currency taken from the school. Some of the recovered items also had “Pelon” tagged on them, a moniker defendant had claimed was his. Defendant also told Officer Fraynham that he was homeless, unemployed, and occasionally stayed at the Martinez house.
Officer Fraynham testified that defendant waived his Miranda rights and confessed to knowing the location of the remaining stolen property. Defendant directed officers to the Arabian Gardens Mobile Park, space 144, where two duffel bags hidden underneath a black jacket were recovered in a shed or storage unit behind the driveway area. The bags contained the school’s projector, two microscopes, two cameras, a CD player, two flashlights, pens, markers, and a cell phone. The digital camera’s media card had pictures, time stamped 11:55 to 11:56 p.m. May 17, 2006, depicting defendant and others at a truck stop near the school.
Miranda v. Arizona (1966) 384 U.S. 436.
Garcia testified that the digital camera time stamp was one hour behind, as it was not adjusted for daylight savings time.
Officer Fraynham testified that defendant denied involvement with the school break in. Defendant told Officer Fraynham that he had arrived at Martinez’s house at approximately 10:00 or 11:00 p.m. on May 17, 2006, and had “partied” by drinking beer and smoking methamphetamines. When defendant’s friends showed up at the house with the stolen items, he helped conceal the stolen property, despite thinking it was “stupid.”
III. DISCUSSION
A. Was There Substantial Evidence to Support the Burglary and Vandalism Charges?
1. Standard of review
The question an appellate court must ask when reviewing whether the evidence is sufficient to support a jury verdict is “whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] We view the whole record in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence to determine whether the record discloses substantial evidence. [Citations.] ‘Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.’ [Citation.] ” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
“‘“[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’ [Citation.] ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.”’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
2. Defendant’s contentions
Defendant concedes that a burglary and vandalism occurred at the school and that he knowingly received and concealed stolen property (count 3). Defendant contends, however, that only by way of “speculation” or “conjecture” could one conclude that he actively participated in, or alternatively, aided and abetted, the burglary and vandalism. Defendant’s contentions appear to stem from Officer Fraynham’s testimony regarding what defendant really meant by his words, defendant’s candor in readily admitting to the crime he had committed, and cooperating with law enforcement to recover the stolen property.
“[Officer Fraynham] . . . I just basically asked for consent to talk to them and come inside the house and make sure they weren’t involved.
3. Substantial evidence presented at trial — burglary
A conviction may be based purely on circumstantial evidence and “may not be set aside because the evidence is susceptible of two reasonable inferences, one looking to defendant’s guilt and the other to his innocence. [Citation.] ” (People v. Kittrelle (1951) 102 Cal.App.2d 149, 158.) Section 459 sets forth in part, “Every person who enter[s] any . . . building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” Accomplishment of a theft or a felony is not a requirement. CALJIC No. 2.15 provides, in pertinent part, “If you find that a defendant was in [conscious] possession of recently [stolen] [] property . . . there must be corroborating evidence tending to prove defendant’s guilt [of burglary or theft]. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt.” (See also People v. Mercer (1951) 103 Cal.App.2d 782, 789 [holding that possession of recently stolen property, coupled with false statements and familiarity to burglarized premises may be sufficient to uphold a burglary conviction]; People v. Citrino (1956) 46 Cal.2d 284, 288-289 [holding that “failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessor’s guilt of the burglary”].)
In People v. Smith (1954) 128 Cal.App.2d 706, the defendant’s burglary conviction was reversed for insufficiency of evidence. (Id. at p. 710.) The crime occurred in the middle of the night when a brick was thrown through a jewelry store’s window and certain items were taken. (Id. at p. 707.) The morning after the burglary, defendant and two codefendants were at a pool hall when one codefendant attempted to sell the stolen property. (Id. at p. 707-708.) The Smith court held that the evidence was not sufficient where defendant was not shown to be in direct possession of the stolen property, and where the evidence raised only a suspicion of guilt. (Id. at p. 709.) Smith also held that possession of stolen property, insufficient by itself, may be used in corroboration with other evidence to show guilt. (Ibid.)
Here, unlike Smith, the defendant was found to be in conscious possession of stolen property. Defendant’s own admission and picture evidence reveal him to have been in possession of the stolen property shortly after the burglary took place. Defendant also helped conceal the stolen property. Other circumstances presented during trial were defendant’s proximity to the crime scene and his relationship with one known perpetrator.
Based on the footprints left inside the school and the digital picture time stamp, the jury could conclude that the school was broken into within a half-hour time frame. Witness testimony established that defendant was in close proximity to the crime scene directly before and after the commission of the crime. In looking at the window of opportunity to commit the crime, the extensive nature of damage that occurred at the school, and the amount of property that was stolen from the premises, it is not unreasonable for the jury to conclude that more than one perpetrator was involved. At least one perpetrator was Martinez; a resident of the house where defendant was “drinking beer and smoking methamphetamine.” Taking into account the nature of the crime, including gang graffiti left at the crime scene, and Deputy Alvaro’s conclusion that defendant was a gang member, the fact finder reviewing all of the evidence presented could reasonably conclude that defendant was either a perpetrator or aided and abetted the commission of the burglary and vandalism.
Defendant’s next contention attacks the sufficiency of evidence to support the prosecution’s aiding and abetting theory. People v. Beeman (1984) 35 Cal.3d. 547, indicates a conviction under this theory requires proof, beyond a reasonable doubt, that the accused acted with knowledge of the criminal purpose of the perpetrator and with an intent of either committing, encouraging, or facilitating commission of the offense. Defendant argues there was no evidence presented tying him to the crime scene or to show the requisite mens rea.
Presence at the crime scene is not required when a crime is committed. (§ 31; People v. Bohmer (1975) 46 Cal.App.3d 185, 199.) And, although defendant’s failure to prevent a crime is not enough, these are factors to be considered in determining guilt beyond a reasonable doubt. (People v. Villa (1957) 156 Cal.App.2d 128, 134.) The fact finder could reasonably have inferred that even if defendant did not actively participate in the commission of the crimes, he gave aid either before or during its commission. Evidence to support this finding includes defendant being in close contact with at least one perpetrator directly before and directly after the burglary and vandalism occurred, defendant being in possession of the stolen property, his moniker being tagged on some of the stolen school property, as well as the testimonies of Officers Fraynham and Alvaro regarding defendant’s conversations and affiliations with the VCR 52 gang.
“[A]ll the circumstances must be considered together in determining whether the inference of guilt may be found. [Citation.] ” (People v. Gould (1952) 111 Cal.App.2d 1, 8.) In viewing the whole record in the light most favorable to the judgment, it is fair to conclude that there was substantial evidence for the jury to return a guilty verdict on the burglary conviction.
4. Substantial evidence presented at trial — vandalism
Defendant also presents the same contentions regarding the sufficiency of evidence in regard to the vandalism conviction. Section 594 sets forth that one is guilty of felony vandalism if he or she “[d]efaces with graffiti or other inscribed material,” damages, or destroys real or personal property “not his or her own, in cases other than those specified by state law,” and where damage to real or personal property is over $400. (§ 594, subds. (a) & (b)(1).)
The undisputed evidence at trial established: (1) that vandalism occurred at the school, and (2) that the property damage was well over $400. For the same aforementioned reasons regarding the burglary conviction, when viewing the totality of circumstances, there was substantial evidence to support a finding that defendant either directly participated in, or aided and abetted the vandalism on the school’s property.
Testimony by Garcia established that the estimated damage from the broken window, stolen cash, paint supplies (not including labor) and replacing the keys, was around $3,000.
B. Did the Trial Court Commit Reversible Error by Not Instructing Sua Sponte on the Crime of Accessory After the Fact?
1. Defendant’s contentions
Defendant contends that the trial court committed reversible error by failing to instruct sua sponte on the theory of accessory after the fact. Alternatively, he claims that he received ineffective assistance of counsel.
2. Trial court’s sua sponte duty
Defendant concedes that being an accessory after the fact is a lesser related offense to burglary and vandalism, but that as a general principle of law, the trial court had the duty to instruct the jury in light of the evidence presented at trial. Generally, the trial court must instruct sua sponte on general principles of law relevant to issues raised by evidence presented at trial (People v. Blair (2005) 36 Cal.4th 686, 744); that is, “principles closely and openly connected with the evidence adduced before the court which are necessary for the jury’s proper consideration of the case.” (People v. Iverson (1972) 26 Cal.App.3d 598, 604, overruled on another point in In re Earley (1975) 14 Cal.3d 122, 130; see also People v. Grassini (2003) 113 Cal.App.4th 765, 777.) This requirement applies only to general principles necessary for the jury’s understandings and not to pinpoint instructions for a particular case. (See People v. Warren (1940) 16 Cal.2d 103, 116-117, overruled in part on another point in People v. Cook (1983) 33 Cal.3d 400.)
In People v. Birks (1998) 19 Cal.4th 108, 136 (Birks), the California Supreme Court held that a defendant has no right to an instruction on a lesser related offense. Birks reasoned that a lesser included offense is subsumed by the charged crime and as such is a “general principle of law” that requires instruction to the jury. (Id. at p. 118.) However, a lesser related offense was deemed not to be one of those general principles to warrant a court’s duty to instruct absent a request. (Ibid.) Birks concluded that it was up to the prosecution to charge a lesser related offense as an alternate charge. (Id. at p. 129.) Since the prosecution has the right to decide what charges to try, it has no obligation to charge a lesser related offense even if supported by the evidence; a defendant has no right to an accessory after the fact instruction unless consented to by the prosecution. (Ibid.) It has also been held that accessory after the fact is not a lesser included offense. (People v. Riley (1993) 20 Cal.App.4th 1808, 1815; People v. Majors (1998) 18 Cal.4th 385, 408; People v. Schmeck (2005) 37 Cal.4th 240, 291 [holding defendant not entitled to instruction on uncharged lesser related crime of accessory after the fact]; Birks, supra, at pp. 112-114 [burglary].)
Defendant does not dispute this. Rather, he asserts that the evidence presented at trial raised a general principle of law between “two temporal categories — the time before and during commission of the crime . . . and the time after the crime has been committed . . . .” Defendant has seemingly dissected the two notions of “lesser included offenses” and “general principles of law” into separate criteria for the court to apply when determining if an instruction should have been given. However, as Birks makes clear, the two are interrelated and the duty to instruct on a lesser included offense “evolved from the broader and even older rule of California criminal procedure that the court must instruct sua sponte on ‘the “general principles of law governing the case;”’ i.e., those ‘“closely and openly connected with the facts of the case before the court.”’ [Citations.]” (Birks, supra, 19 Cal.4th at pp. 118-119.) This language implies that what was once a broad indefinite notion of “general principles” has shrunk to only those lesser included offenses, and not, as defendant proposes, an alternate criterion that trigger’s a court’s duty. We therefore conclude the trial court did not have a sua sponte duty to instruct on being an accessory after the fact.
3. Even if there was a sua sponte duty, failing to instruct was not reversible error
Even if we assume the trial court erred in failing to instruct on a lesser related offense, the error was harmless.
The Constitution of the State of California reads in part, “no judgment shall be set aside . . . on the ground of misdirection of the jury . . . unless, after an examination of the entire case . . . the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., Art. VI, § 13.)
Defendant contends that the failure to give this instruction was a violation of his Sixth and Fourteenth Amendment rights because the jury was not instructed on the elements of a crime it was to decide. However, the United States Supreme Court has expressly refrained from recognizing a constitutional right to instructions on lesser included offenses in non capital cases, and therefore the California rule of sua sponte instructions is independent of federal law. (People v. Breverman (1998) 19 Cal.4th 142, 168.) Thus, the Watson test applies when a defendant argues that reversal is warranted by a trial court’s failing to sua sponte instruct the jury on a “general principle of law.” People v. Watson (1956) 46 Cal.2d 818 (Watson), states that a “‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause . . .’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Id. at p. 836.)
People v. Sedeno (1974) 10 Cal.3d 703, overruled in part on another point in People v. Blakeley (2000) 23 Cal.4th 82, 89, held that even if “an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions,” then the prejudicial effect of such failure may be deemed harmless if it “reasonably appears from the verdict and the instructions given that the jury rejected the evidence tending to prove the lesser offense.” (People v. Sedeno, supra, at p. 721)
In the present case, the factual question is when defendant became involved in the commission of the burglary and/or vandalism. As mentioned previously, substantial evidence exists to support a jury finding that defendant became involved either before or during the commission of the crime. Defendant’s counsel during trial contended that time frame was after the fact. The jury instruction on burglary and vandalism included not only the elements of the crimes, but also the theories of defendant being a perpetrator or an aider and abettor. CALJIC No. 401, the instruction regarding aiding and abetting which was given to the jury in this case, states, in part, “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime . . . .” The jury verdict forms do not elaborate as to which theory the defendant was found guilty. This leads to a reasonable conclusion that the jury found defendant guilty as either a perpetrator, or as aiding and abetting the commissioned crimes either before or during the crimes. Based on these findings, it is not probable that defendant would have received a more favorable result even if the accessory-after-the-fact instruction were read. The jury was well within its power to reject the prosecution’s theory of the case and acquit the defendant. Nonetheless, the jury necessarily rejected the defendant’s interferences based on its interpretation of the evidence. For these reasons, defendant’s contentions fail on the merits, as any perceived judicial error was harmless.
4. Defendant’s claim of ineffective assistance of counsel
Alternatively, defendant contends he received ineffective assistance of counsel based on counsel’s failure to request an instruction on accessory after the fact. “To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288.) Appellate review is a deferential one. (In re Jones (1996) 13 Cal.4th 552, 561.) Reversal on the ground of ineffective assistance of counsel is mandated “only if the record affirmatively reveals no rational tactical purpose for [counsel’s] act or omission.” (People v. Terrell (1999) 69 Cal.App.4th 1246, 1253.)
The record reveals the tactical purpose behind defense counsel’s failure to request an instruction on accessory after the fact. Defendant’s time of involvement was the single most important issue during trial. The People put forth a theory that implicated defendant either before or during the commissioned crimes. Defendant, conversely, painted a picture of becoming involved after the fact. The jury could have acquitted defendant on the burglary and vandalism counts had it found reasonable doubt. Requesting an instruction on accessory after the fact could have resulted in greater liability for defendant since, for reasons previously discussed above, accessory after the fact is not a lesser included offense. (See People v. Le (1995) 39 Cal.App.4th 1518, 1523 [defendant, for tactical purposes, can refrain from requesting instructions on lesser related offenses where the all-or-nothing risk outweighs that of being convicted on the charged offense].) We conclude defendant did not receive ineffective assistance of counsel.
C. Should We Remand to Trial Court for Resentencing?
1. Defendant’s contentions
Defendant next contends that under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), his upper term sentence of four years for count 1 should be vacated and the middle term imposed.
2. Cunningham and subsequent California Supreme Court decisions
In Cunningham, the United States Supreme Court ruled that California’s Determinate Sentencing Law (“DSL”) violated a defendant’s Sixth Amendment constitutional right to trial by jury. (Cunningham, supra, 127 S.Ct. at p. 873.) Cunningham held that California’s DSL exposed defendants to a sentence in excess of the statutory maximum level based on fact finding by the trial court using a “preponderance of the evidence” standard. (Cunningham, supra, at p. 863.) The DSL also did not allow judges to exercise discretion to select a specific sentence within a defined range. (Cunningham, supra, at p. 863.)
The maximum based on facts found by the jury verdict alone was the middle term. (§ 1170, subd. (b).)
People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), addressed the effect of Cunningham with respect to a “judge’s authority to find the facts that render a defendant eligible for an upper term sentence.” (Sandoval, supra, at p. 832.) Sandoval reiterated Cunningham’s and Apprendi’s exceptions to the requirement of a jury trial for sentencing factors; when the defendant admitted to a fact used to elevate a sentence, and using defendant’s prior convictions to impose an upper term sentence. (Sandoval, supra, at p. 835.) Any other circumstance used as an aggravating fact must go to the jury and be found beyond a reasonable doubt. (Ibid.) In Sandoval, the court stated, “‘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 . . . regardless of whether the facts underlying those circumstances have been found to be true by a jury.’ [Citation.] ” (Id. at p. 839.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury . . . unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Ibid.)
Apprendi v. New Jersey (2000) 530 U.S. 466.
3. The upper term sentence imposed by trial judge is consistent with Cunningham and Sandoval
The record reflects that the trial court imposed the upper level sentence on the defendant’s gang enhancement (found to be true by the jury) because the offense occurred at a school, and the damage was extensive. Using the harmless error analysis under the Chapman standard, these facts underlying the crime would have undoubtedly been found true had they gone to the jury for determination. (See Neder v. United States (1999) 527 U.S. 1, 15.) First, the crime’s location was not disputed. Second, the aggravating circumstance cited to by the trial court was to the extensive nature of the damage caused by the crimes. The People argue that the jury also found this to be necessarily true by virtue of finding defendant guilty of vandalism, which requires damage exceeding $400. This, however, is not a legitimate aggravating circumstance. California Rules of Court, rule 4.420(d), states, “A fact that is an element of the crime may not be used to impose a greater term.” As such, the People’s argument fails.
Chapman v. California (1967) 386 U.S. 18, 22 (holding that federal constitutional error can be held harmless if it is harmless beyond a reasonable doubt).
However, in viewing the whole record under the Chapman standard, the sentencing hearing reflects the trial court’s consideration of the defendant’s prior conviction of a serious felony as an adult, and the fact that defendant was also on probation for another offense when convicted of the present offenses. These recidivism factors, under the Apprendi rule, may be used to justify rendering an upper term sentence without violating the defendant’s constitutional rights. (Sandoval, supra, 41 Cal.4th at p. 835.)
D. Abstract of Judgment Must Be Corrected to Reflect the Correct Sentence
Defendant contends, and the People concede, that the abstract of judgment must be corrected. The trial court stayed the sentences imposed for counts 2 and 3 pursuant to section 654, which precludes multiple punishments; however the abstract of judgment shows that counts 2 and 3 are to run concurrent with count 1. We will remand this matter to the trial court to correct this error.
IV. DISPOSITION
The matter is remanded for the trial court to correct the abstract of judgment. The clerk of the court is then ordered to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.
“Q: What, if anything, did [defendant] respond to that?
“A: The next question I asked [defendant] is, ‘Is there a parent or guardian home?’
“And he said, ‘No.’
“And then I asked [defendant] ‘Well, if no one is home, who’s in charge of the house now?’
“Q: What, if anything, was [defendant’s] response?
“A: [Defendant] told me he was the oldest and he was in charge.”