Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. KA067967. Abraham A. Khan, Judge. Affirmed.
Law Office of Margaret E. Dunk and Margaret E. Dunk for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD Acting P. J.
A jury convicted appellant Renell Eugene Ross of evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)) (count 2) and possession of a short-barreled shotgun or rifle (Pen. Code, § 12020, subd. (a)(1)) (count 5). With respect to count 2, the jury found true the allegation that a principal was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1).
The trial court imposed a total sentence of four years eight months in prison. The sentence consisted of the upper term of three years in count 2, a consecutive eight months for count 5, and a consecutive term of one year for the arming allegation.
Appellant appeals on the grounds that: (1) his conviction must be reversed because the prosecutor exercised peremptory challenges against all African-Americans on the jury panel based on their race; (2) his conviction must be reversed because the prosecutor exercised peremptory challenges against all African-American males on the jury panel based on race and gender; and (3) he was deprived of his state and federal constitutional rights to a jury trial and to due process when the trial court imposed the upper term in count 2 by relying on factors not found true by a jury beyond a reasonable doubt.
FACTS
Prosecution Evidence
At approximately 9:30 p.m. on July 25, 2004, Officer Stephen Delgadillo of the West Covina Police Department was on patrol when he passed a blue Jeep Cherokee parked in a red zone in front of an apartment complex. After observing that the road became very narrow in that location, Officer Delgadillo decided to warn the driver to move his car. There were several people standing on the curb next to the Jeep as Officer Delgadillo backed up towards it. Officer Delgadillo saw an individual, later identified as appellant, run to the Jeep and enter the driver’s seat. The Jeep then sped away. Officer Delgadillo saw that a woman who had been standing on the curb was squatting down to pick up a baby lying on the curb. The woman screamed, “Oh, my God, my baby.”
Officer Delgadillo thought that the Jeep might have run over or hit the child. He notified dispatch that there had been a possible hit and run accident and then began to pursue the Jeep. He saw that the Jeep failed to stop at a stop sign, and he activated his lights and siren. Officer Delgadillo saw that the lights on the Jeep were extinguished. At one point during the pursuit, the Jeep was traveling at approximately 50 miles an hour on the streets. The Jeep eventually turned into a dead-end street and crashed into a wall. Officer Delgadillo saw appellant get out of the driver’s side of the Jeep carrying a handgun. When appellant ran in front of the patrol car, Officer Delgadillo tried to knock appellant down with the car. Appellant avoided being struck, and the patrol car hit the wall. Officer Delgadillo drew his weapon and chased appellant while ordering him to stop. Appellant climbed over a wall and escaped.
Returning to the Jeep, Officer Delgadillo saw the stock of a long gun near the center console. Later, a loaded sawed-off pump-action shotgun was found in the vehicle. The mother of the child who had fallen, Simone Elleby (Elleby), identified appellant as the driver of the car.
Elleby testified at appellant’s trial that she and appellant were the parents of the child who had fallen, and the child was approximately seven months old at the time of the incident. On that day, appellant had taken the child to the doctor. He then sent the child home to Elleby with a friend of his, who drove Elleby’s Jeep. Elleby did not know the friend’s name. Elleby and her child fell when she slipped off the curb. She acknowledged that she told an officer on the night of the incident that appellant was driving the car. Elleby also admitted identifying appellant from a photographic lineup and testifying at the preliminary hearing that appellant was driving the car. At trial she stated that the guns in the car were hers. She claimed that she had lied about appellant because her friends, with whom she was staying, forced her to choose between them and appellant.
Defense Evidence
Appellant presented no evidence on his behalf.
DISCUSSION
I. Peremptory Challenges Against African-Americans
A. Relevant Authority
Under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), a prosecutor may not use peremptory challenges to remove prospective jurors based on the sole ground of “group bias;” i.e., bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds.” (Wheeler, supra, at pp. 276–277.) Peremptory challenges may only be used to remove jurors based on a “specific bias”—one that arises from the juror’s individual bias and is related to the facts of the particular case, the parties, or the witnesses. (Id. at pp. 274–276.)
A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (Wheeler, supra, 22 Cal.3d at pp. 276–277.) Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. (Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson).)
The United States Supreme Court recently reiterated the applicable legal standards in the context of racial groups. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’” (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)
The trial court must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, [its] knowledge of trial techniques, and [its] observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .” (People v. Hall (1983) 35 Cal.3d 161, 167–168; see also People v. Arias (1996) 13 Cal.4th 92, 136.)
This court gives “great deference to the trial court in distinguishing bona fide reasons from sham excuses.” (People v. Turner (1994) 8 Cal.4th 137, 165; see also People v. Jurado (2006)38 Cal.4th 72, 104–105.) We review a trial court’s ruling under the substantial evidence standard. (Ibid.)
B. Argument
Appellant contends that he established a prima facie case of group bias and that the trial court erroneously denied his Wheeler-Batson motion when it decided that the prosecutor gave truthful race-neutral explanations for the challenges. According to appellant, the trial court’s conclusions are not entitled to deference because the reasons offered were contradicted by the record and were inherently implausible. Appellant argues that remanding to the trial court to conduct a more thorough inquiry would be futile. He contends that the record is largely silent because no questions were asked to elicit details about prospective Juror No. 21. Furthermore, this particular voir dire was not sufficiently noteworthy to the trial court or the attorneys for detailed memories to currently exist. Therefore, appellant maintains, the conviction must be vacated and the case remanded for retrial.
C. Proceedings Below
The record shows that the prosecutor accepted the panel as constituted after the prosecutor and defense counsel had each exercised three peremptory challenges. The defense then exercised another peremptory challenge and the prosecutor again accepted the panel as constituted. The defense exercised another peremptory challenge, and the prosecutor accepted the panel. However, the defense’s next peremptory challenge brought prospective Juror No. 21 to the panel, and the prosecutor exercised a peremptory challenge to this juror, an African-American male. Defense counsel asked to approach the bench, and the trial court stated, “All right. Ms. Khan [defense counsel], I presume you’re going to make a Wheeler motion.”
At the bench, defense counsel stated that she wished to make a motion under both Wheeler and Batson. The trial court noted that there was at least one other African-American in the audience and there were perhaps three total prospective jurors who were of African-American descent. The trial court believed that prospective Juror No. 16, a female, the prosecutor’s penultimate peremptory, might have been African-American. The court stated it intended to ask the prosecutor to provide race-neutral reasons for the peremptory challenges to prospective Jurors Nos. 21 and 16 unless the defense conceded that prospective Juror No. 16’s statements regarding her inability to be fair constituted sufficient justification.
In his reply brief, appellant abandoned his claim that the excusal of prospective Juror No. 16 was racially motivated. We relate portions of the voir dire discussion regarding Juror No. 16 to place the trial court’s ruling in context.
The prosecutor explained that he had excused prospective Juror No. 21 because he was “separated and has a child and this case is about someone who is—they’re not married but they have a child in common. And my feeling is he is in the exact same position that the defendant and/or the victim are in with his child. And although I didn’t ask him questions about it, it’s generally my practice to think long and hard about keeping, No. 1, anyone who is divorced or separated because as a prosecutor my burden is not only to convince beyond a reasonable doubt but I have to convince all 12 and all 12 people have to get along. So generally I think long and hard when someone is divorced or separated because there may be issues that would make it more difficult for them to get along. But in this case because there is a child involved, a five-month-old child, the child endangerment, and there is—although no domestic violence charge—this is a domestic situation that is alleged that the defendant is dropping off the five-month-old with the mother of the five-month-old, my personal concern in this case is that someone with a child who is currently separated from their significant other, it would be—the facts of this case would be very similar to their life.”
The jury ultimately acquitted appellant of cruelty to a child by endangering health (Pen. Code, § 273a, subd. (b)) as charged in count 4 of the information.
Noting that prospective Juror No. 16 was unequivocal about not wanting to be on the case, the court asked the prosecutor to assume he was required to give a race-neutral reason for challenging her. The prosecutor observed that prospective Juror No. 16 questioned her own ability to be fair in the case. Her undesirability was compounded by the fact that she was divorced. In addition, she displayed defensive body language throughout questioning by the trial court and both attorneys. Finally, this prospective juror, who was a teacher, revealed that she was uncomfortable when one of her students confided a domestic violence incident to her. She stated she would not have done anything about it if she had not been obliged to do so to avoid liability, and this attitude concerned the prosecutor. The trial court agreed that this admission brought into question the prospective juror’s ability to deliberate.
The trial court stated that unless defense counsel wished to be heard further, the trial court intended to find that the race-neutral reasons for excusing prospective Jurors Nos. 21 and 16 appeared to be reasonable and plausible “with regard to reasons independent of race.” Defense counsel replied that further inquiry should have been made into prospective Juror No. 21’s situation—whether he was married or separated, the age of his child, and whether he had a history of domestic violence. Defense counsel said she was concerned with prospective Juror No. 21 because “there aren’t that many male Blacks.”
The trial court stated, “Consistent with the requirements that the respondent to a Wheeler motion give race neutral reasons, Mr. Bengston [the prosecutor] has done that, and I required him to give reasons for every African-American because your motion appeared to be race related not gender but I asked him to explain 16 too and he gave a plausible explanation for both 16 as well as 21. And we all did hear 21 say he was separated, he threw that out pretty quick, and that he had child [sic], that he worked for Albertson’s, that he had some prior jury experience. And as long as I don’t come to the conclusion that the reasons proffered by way of explanation by the People are spurious, are arbitrary, somewhat unjustified without any rational basis, I believe that the offer was made in good faith and based on legitimate reasons that were truly race neutral that I’m concluding that they’ve exercised their peremptories in a constitutionally appropriate way and not to exclude a class of people simply because of race and I do make that conclusion.”
D. No Abuse of Discretion in Denying Wheeler/Batson Motion
Although the trial court did not specifically state it had made a prima facie finding, we may infer an implied finding when the trial court solicits an explanation of the challenged excusals without indicating its views on the prima facie issue. (People v. Arias, supra, 13 Cal.4th at p. 135.) Therefore, the only remaining issue is whether the individual justifications were adequate. (Ibid.)
Prospective Juror No. 21 told the court he was a warehouseman for a supermarket chain. He was separated and had one child. He had previously been a juror on one other case, a criminal case, and had had no contact with law enforcement.
Appellant asserts that the fact that prospective Juror No. 21 was challenged as soon as he was seated in the box indicates that the proffered reasons were shams. Appellant points out that none of prospective Juror No. 21’s responses to the trial court’s series of initial questions suggested he would not be a good juror for the prosecution. Furthermore, prospective Juror No. 21 was married and separated, whereas appellant was unmarried. Thus, according to appellant, voir dire showed that prospective Juror No. 21 had a background not unfavorable to the prosecution and nothing in his responses would have led a reasonable prosecutor to exercise a peremptory challenge against him.
Moreover, according to appellant, the fact that the prosecutor did not ask questions about prospective Juror No. 21’s marital situation or the age and custody status of his child showed that the offered justifications were shams. In addition, the trial court itself did not inquire into the age of prospective Juror No. 21’s child or into any history of domestic violence. Appellant asserts that when the reasons offered are vague and unsubstantiated, the trial court must conduct a thorough inquiry into the substance of the explanations, and a failure to do so requires reversal. Appellant complains that the trial court not only failed to look behind the offered reasons, it also did not compare the reasons with the record made by other prospective jurors who were not excused.
In support of his claims, appellant points out that prospective Juror No. 20, who was not African-American, but who was divorced, was passed by the prosecution numerous times and became a member of the panel. Prospective Juror No. 20 was in the box before prospective Juror No. 21. After prospective Juror No. 20 was seated, the prosecutor accepted the panel. Prospective Juror No. 20 survived four possible prosecutorial rounds of dismissal, thus demonstrating that the true rationale for dismissing prospective Juror No. 21 was racial. According to appellant, persons who identified themselves as single or not married with children, without children, or those who gave no information as to whether they had children, were not excused—namely prospective Jurors Nos. 4, 6, and 18. In fact, these prospective jurors became jurors in the case. Their marital status and the custody status of their children were apparently not important factors to the prosecutor, since he did not ask any of these jurors for details.
In People v. Ledesma (2006) 39 Cal.4th 641, 679, the California Supreme Court assumed without deciding “that the United States Supreme Court’s decision in Miller-El v. Dretke (2005) 545 U.S. 231 . . . (Miller-El) requires us to perform an analysis comparing jurors the prosecutor excused with those he or she did not excuse.” In People v. Gray (2005) 37 Cal.4th 168, 188–189 (Gray) as well, our Supreme Court stated that under Miller-El, an appellate court should compare the prosecutor’s proffered reasons for dismissing a juror with the prosecutor’s actions with respect to other jurors when reviewing the denial of a Wheeler/Batson motion. At the same time, Gray noted, appellate courts are urged to “rely on and defer to our trial courts to distinguish bona fide reasons from the shams that hide improper motives [citation]” because “a party may decide to excuse a prospective juror for a variety of reasons, finding no single characteristic dispositive.” (Gray, supra, at p. 189.)
We conclude that substantial evidence supports the trial court’s rulings regarding the excusal of prospective Juror No. 21. Appellant fails in his attempt to show that prospective Juror No. 21 was similarly situated to other prospective jurors who were acceptable to the prosecution. Although prospective Juror No. 20 was divorced, she had no children. Moreover, she had filed for a restraining order against an aggressive ex-boyfriend, which would have made her appear sympathetic to the prosecution’s case. Prospective Jurors Nos. 4 and 18 were single, and neither of them had children. Prospective Juror No. 6 was previously married but had no children. Appellant does not identify any seated juror who gave the same responses as prospective Juror No. 21 regarding marital status and parenthood.
As stated in People v. Dunn (1995) 40 Cal.App.4th 1039, 1054, challenges to prospective jurors who are likely to be sympathetic to the defense case are proper. Moreover, a prospective juror’s marital status is adequate justification for the use of a peremptory challenge. (People v. Arias, supra, 13 Cal.4th at p. 139.) Although prospective Jurors Nos. 20 and 6 were previously married, the prosecutor merely stated he thought “long and hard” about divorced prospective jurors. This indicated divorce raised a red flag for him but was not necessarily an automatic excusal. Clearly, prospective Juror No. 21’s status as a parent caused his marital situation to weigh more heavily as a negative in the prosecutor’s assessment. And although the prosecutor did not ask prospective Juror No. 21 about the age of his child, it is likely the apparent age of this prospective juror as well as his failure to state any occupation for the child indicated that the child was of a young age. The trial court asked the jurors to discuss any experiences they had with domestic violence, and prospective Juror No. 21 did not respond; therefore, the trial court and the prosecutor had no need to inquire further. Prosecutors may ask few questions or none at all of a particular prospective juror because they have determined that further questioning was not necessary. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1018, fn. 14.) “The proper focus of a [Wheeler] inquiry . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.” (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
Contrary to appellant’s contention, the trial court’s failure to make detailed factual findings is of no moment. As the California Supreme Court stated in People v. Jackson (1996) 13 Cal.4th 1164, 1197–1198, Wheeler does not require the trial court to conduct further inquiry into the prosecutor’s race-neutral explanations if it is “satisfied from its observations that any or all of them are proper.” “Where, as here, the trial court is fully apprised of the nature of the defense challenge to the prosecutor’s exercise of a particular peremptory challenge, where the prosecutor’s reasons for excusing the juror are neither contradicted by the record nor inherently implausible [citation], and where nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutor’s reasons for exercising his peremptory challenges, then those presumptions may be relied upon, and a Batson/Wheeler motion denied, notwithstanding that the record does not contain detailed findings regarding the reason for the exercise of each such peremptory challenge.” (People v. Reynoso, supra, 31 Cal.4th at p. 929.)
Finally, we note that there was one African-American male eventually seated on the jury, which supports a finding that the prosecutor’s reasons were not shams. (People v. Jenkins (2000) 22 Cal.4th 900, 994; People v. Dunn, supra, 40 Cal.App.4th at p. 1054.) Viewing the record under the appropriate standard, we conclude that substantial evidence supports the trial court’s ruling rejecting the Wheeler/Batson motion on the basis of race.
At the close of voir dire, the trial court noted that the jury panel included one African-American male.
II. Peremptory Challenges Against African-American Males
A. Argument
Appellant contends he also stated a prima facia case for racial and gender discrimination when the only African-American male in the box was excused. Appellant again argues that the reasons for excusing prospective Juror No. 21 were a sham. Appellant maintains that the trial court did not receive any plausible race-neutral and gender-neutral reasons for the elimination of prospective Juror No. 21. Appellant asserts that the record demonstrates that it was precisely because prospective Juror No. 21 was male and African-American that he was similar to appellant and was excused. Appellant again points to the marital status of other prospective jurors and to the information they provided regarding their children, if any, as proof that the marital status and ages of children was in reality unimportant to the prosecutor.
B. Waiver; Reasons Sufficient
We observe that defense counsel did not request the trial court to elicit race-neutral and gender-neutral reasons for the prosecutor’s exercise of his peremptory challenges below. After the prosecutor gave his explanations, the trial court stated, “Unless you want to be heard further, Ms. Khan, I’m going to find that the race neutral reasons given for both Jurors 21 and 16 appear to be reasonable and plausible with regard to reasons independent of race as to why the People would want to presently excuse them.” Defense counsel made no mention of gender at that time and merely stated that she believed prospective Juror No. 21 should not have been excused without further inquiry into the age of his child and any history of domestic violence. She was “concerned with Juror No. 21. There aren’t that many male Blacks,” and the trial court noted that there was only one male African-American left in the audience. Defense counsel stated that there was “a difference between having a jury of your peers being a male Black and those being female Blacks.” The trial court replied that it had required reasons for every African-American because counsel’s motion appeared to be related to race and not to gender. Defense counsel merely replied, “Yes, your honor” and made no further mention of gender.
The record thus shows that, although defense counsel expressed a concern that there were not many male African-Americans in the venire, she made no specific argument based on race and gender, and she readily acquiesced when the trial court explained it understood her motion to be based on race alone. Therefore, any claim that prospective Juror No. 21 was eliminated based on his race and gender is not cognizable on appeal. (People v. Cleveland (2004) 32 Cal.4th 704,734; People v. Hayes (1990) 52 Cal.3d 577, 605; People v. Howard (1992) 1 Cal.4th 1132, 1154.)
In any event, the same reasons we have discussed in concluding that the prosecutor’s challenge was not racially based also refute any challenge that it may have been made based on race and gender. The reasons given by the prosecutor, fully set out in the previous section, were both race-neutral and gender-neutral and precluded any claim of purposeful exclusion of African-American males. None of the other prospective jurors were in prospective Juror No. 21’s precise situation of being separated and having a non-adult child. The prosecutor’s reasons were plausible and not refuted by the record. Prospective Juror No. 21 was challenged based on his marital status combined with the fact that he presumably had a minor child, not on his membership in the category of male African-Americans.
III. Imposition of Upper Term
A. Proceedings Below
At sentencing on December 19, 2005, the trial court noted that appellant had been charged in another felony case (case No. KA072372) while the instant case (case No. KA067967) had been pending. In the new information, dated November 30, 2005, the People charged appellant with carrying a concealed firearm on his person in violation of section 12025, subdivision (a)(2) and with carrying a loaded firearm in violation of section 12031.
The prosecutor recommended a sentence of four years eight months in the instant case. According to the prosecutor’s scheme, the sentence would consist of the high term of three years on count 2 (evading) and one year for the firearm enhancement on that count. Appellant would also receive one-third the midterm on count 5 (possession of a short-barreled shotgun), or eight months, to be served consecutively. The prosecution intended to dismiss the pending gun charge if appellant were given this maximum sentence.
Appellant addressed the trial court and explained that he lived in an environment of gang violence. He was not a gang member, but he felt obliged to carry guns to protect himself. The trial court responded that appellant was not a first-time offender and noted that appellant had continued to carry a firearm notwithstanding the pendency of his trial for carrying a weapon. The trial court also noted that there were three cases against appellant before the court. When the prosecutor argued that appellant was rationalizing his conduct by saying it was necessary to carry guns, appellant interjected, “It is and I will continue to.” Appellant indicated to the trial court that he would continue to carry guns when he got out of prison because he had to protect himself and his family. The trial court reminded appellant that he was in a sentencing hearing, and appellant replied that he was trying to be honest.
The trial court stated it could arrive at a sentence of four years eight months in two ways. The first would be to impose the midterm and one consecutive year on the weapons charge, which would yield three years eight months. Then, on the separate case, the trial court could impose a consecutive sentence of one third the midterm, or eight months, as well as additional time for appellant’s probation violation, which would result in a sentence of four years eight months. The trial court noted that the People were willing to offer to dismiss the new case if appellant received a sentence of four years eight months on the instant case. The trial court asked defense counsel which she preferred—to leave the new felony case and a possible trial pending or to accept the People’s offer to dismiss the new case and have the maximum sentence imposed on the instant case. Defense counsel preferred the latter.
The trial court then sentenced appellant to the People’s recommended sentence, stating, “Based on the factors in aggravation indicated in the probation report, and further factors we’ve discussed here in open court, on count 2, you’re sentenced to the upper term of three years; and that requires an additional year because of the weapons use allegation for a total of four years; and with respect to count 5, it’s one-third the midterm consec which adds eight months. And there are a number of factors in aggravation. The court only selects one factor in aggravation for the selection of the upper term and selects an additional factor for consecutive sentencing based on the discussions we’ve had here in open court. So your total sentence on all of these cases is four years and eight months.” The trial court granted the People’s motion to dismiss case No. KA072372. The trial court also terminated probation on a misdemeanor case without the benefit of dismissal (case No. 3BH00368).
The probation report listed the following five circumstances in aggravation: the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable; the manner in which the crime was carried out, or other facts, indicate premeditation; the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; the defendant was on probation when the crime was committed. The probation report listed no circumstances in mitigation.
The record shows that appellant was given 36 months summary probation on September 24, 2003, after being convicted of inflicting corporal injury on a spouse in violation of Penal Code section 273.5, subdivision (a).
B. Relevant Authority
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), the Supreme Court explained that the relevant “‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), decided January 22, 2007, the United States Supreme Court held that California’s determinate sentencing law, which authorizes a judge to find the facts permitting an upper term sentence by a preponderance of the evidence, violates a defendant’s right to trial by jury. (Cunningham, supra, at p. ___ [127 S.Ct. at pp. 860, 871].)
C. Argument
In his opening brief, relying on Apprendi and Blakely, appellant contended he was deprived of his state and federal constitutional rights to a jury trial and due process because the trial court imposed the upper term by relying on aggravating factors not found true by a jury beyond a reasonable doubt. He maintained that at least four of the five aggravating factors listed in the probation report could not have been used to support an enhanced or consecutive sentence in any event, since they were used to establish the elements of the conviction and gun enhancement, or they related to counts that were eliminated by dismissal or acquittal. There was no evidence presented with respect to appellant’s alleged probation violation and prior convictions. The trial court accepted the prosecutor’s statements and those in the probation report regarding this factor and made a finding by a mere preponderance of the evidence. Appellant argued that this error was structural and a harmless-error analysis was inappropriate. He asserted that reversal of his sentence was required.
Shortly after briefing was complete in the instant case, the decision in Cunningham was handed down followed by the decisions of the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). At the request of this court, appellant submitted supplemental briefing on the issue of the effects of Black and Sandoval on appellant’s sentence.
Appellant continues to assert that his Sixth Amendment right to a jury trial was violated when he was sentenced to the upper term on count 2 based on ambiguous and vague assertions by the trial court rather than facts found by a jury. He maintains that the five aggravating factors listed in the probation report and relied upon by the trial court were not supported by facts found by the jury. Appellant argues that recidivism did not support an enhanced sentence in his case based on his probationer status or on the number or seriousness of his prior convictions. Appellant points out that the extent of the “prior conviction” exception was not resolved in Black. He contends that the exception must be construed very narrowly and that it applies only to the mere fact of a prior conviction. Appellant maintains that remand for re-sentencing is mandated, with a maximum sentence of the middle term.
Respondent argues that appellant’s upper term sentence was constitutional since it was based on appellant’s criminal history. Respondent contends that the trial court’s reliance on appellant’s criminal history was permissible under Cunningham and rendered appellant eligible for the upper term.
D. Upper Term Properly Imposed
We agree with respondent and conclude that the trial court found two factors based on appellant’s criminal history that could properly be relied upon to impose the upper term. In interpreting Cunningham, the California Supreme Court determined in Black, supra, 41 Cal.4th at page 812, that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.) Black emphasized that the “‘prior conviction’ exception” must not be read too narrowly; it includes “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.” (Id. at p. 819.)
Black specifically addressed one of the aggravating factors at issue here. The court stated that, “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 issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black, supra, at pp. 819–820; see also People v Yim (2007) 152 Cal.App.4th 366, 370–371.)
The record shows that appellant’s criminal history began in 1990 when he was a juvenile. He was placed in a camp after the juvenile court sustained a petition alleging he committed battery with serious bodily injury. As an adult he was convicted of misdemeanor trespass in 1993, and of a municipal code violation in 1994, which led to probation. After violating probation he served 25 days in jail. In 1993 he was convicted of carrying a concealed weapon in a vehicle and given probation. He violated probation and served jail time. In 2001 he was again granted probation after being convicted of vandalism. In 2003, he was convicted of corporal injury on a spouse and placed on probation for three years with 30 days jail time. In 2004 he committed the instant offenses. As stated in the probation report and noted by the trial court, while the current matter was being tried, appellant was held to answer on a charge of carrying a concealed firearm on his person and carrying a loaded firearm. Clearly the trial court did not err in finding that appellant’s offenses were numerous and of increasing seriousness.
Furthermore, there was the additional recidivist factor of appellant’s poor performance on probation. The probation report shows that in January of 2003 appellant was convicted of inflicting corporal injury on a spouse and placed on 36 months summary probation. The instant offenses were committed on July 25, 2004, while appellant was on probation.
The trial court specifically stated that its determination was based on the factors in the probation report. Based on those factors appellant was eligible for the upper term, which became the statutory maximum. (Black, supra, 41 Cal.4th at p. 816.) The trial court’s finding of additional facts in support of its discretionary choice of the upper term did not violate appellant’s right to trial by jury. (Id. at pp. 816, 820.)
Appellant’s argument regarding his upper term sentence in count 2 is without merit.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.