Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR5528, CR900977, LP31047.01
Margulies, J.
In a negotiated disposition, defendant Taylor Roy Shepherd pleaded guilty to a new charge of possession of marijuana in jail and admitted violating his probation in two earlier criminal cases. In return, the prosecution had the court strike three prior “strike” conviction allegations in the new criminal case. Defendant appeals from his ensuing sentence of 10 years 8 months in the three cases, contending that: (1) the sentence imposed was greater than the maximum sentence allowed by his plea bargain, (2) the trial court erred in sentencing him to an aggravated term for child endangerment, (3) two concurrent sentences imposed in one of the cases should have been stayed under Penal Code section 654, and (4) the trial court erred in imposing consecutive sentences in the three cases based on facts not found by a jury.
We modify the judgment to stay the concurrent sentences imposed for mayhem and assault with a deadly weapon, and affirm the judgment as so modified.
I. BACKGROUND
A. Case No. LP31047.01
On June 5, 2002, defendant was charged by complaint with bringing a controlled substance into jail (Pen. Code, § 4573; count I), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count II), and obstructing a police officer (Pen. Code, § 148, subd. (a)(1); count III). He pleaded guilty to count II, the remaining counts were dismissed on the People’s motion, and defendant was placed on three years’ probation.
According to the probation report summary, defendant was a passenger in a vehicle stopped by sheriff’s deputies because it matched the description of a stolen vehicle. Defendant ran from the deputies and was apprehended while trying to jump over a fence. A warrant check showed that defendant had an outstanding juvenile arrest warrant. A search of his jacket while he was being booked into the county jail led to the discovery of 1.97 grams of methamphetamine in the inside pocket.
In September 2002, the probation department sought revocation of defendant’s probation due to his failure to report and participate in drug treatment programs. The court summarily revoked probation, and issued a bench warrant for defendant’s arrest. In November 2003, defendant admitted violating his probation, and in January 2004, the court reinstated probation on condition, among others, that defendant serve six months in jail.
On April 9, 2004, the court summarily revoked defendant’s probation based on allegations that defendant had refused to submit to drug testing and possessed marijuana in the county jail. On November 7, 2005, defendant admitted violating probation as alleged.
B. Case No. CR5528
Based on an incident occurring on August 28, 2002, defendant was charged by information with mayhem (Pen. Code, § 203; count I), assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count II), and felony child endangerment (Pen. Code, § 273a, subd. (a); count III). Counts II and III included allegations that defendant personally inflicted great bodily injury. (Pen. Code, § 12022.7, subd. (a).) Defendant pleaded not guilty to all counts and denied the special allegations. In August 2003, a jury found defendant guilty of all charges and found the great bodily injury allegations true. The court placed defendant on five years’ probation on condition, among others, that he serve 360 days in jail. In a nonpublished opinion, this court ordered a no gambling condition of the probation stricken, but otherwise affirmed the judgment. (People v. Shepherd (Feb. 25, 2005, A10614) (Shepherd I).)
The following summary of the events giving rise to the charged offenses is drawn from this court’s opinion in Shepherd I, supra, A104614: On August 28, 2002, Kate Lane was living in Nice, California with her children Elliott, then 15 years old, and Jessica, then 17 years old. Nick Perez, a family friend who was 14 years old, lived with the Lanes. William Santos, 22 years old, lived in a trailer up the hill from the Lane residence. A 16-year-old friend of Elliott’s, Darnay Roston, had come over to visit the Lanes’ house on that date.
On the evening of August 28, Jessica left the home against her mother’s instructions and went up the hill to Santos’s trailer where a number of other people had gathered to drink alcohol and socialize. Kate, who had returned from work at 6:00 p.m., was very upset that Jessica had disobeyed her and was apparently drinking. Nick and Elliott observed Kate sitting at the kitchen table crying.
At 9:00 or 9:15 p.m., Darnay, Elliott, and Nick walked up the hill to Santos’s trailer to find Jessica and bring her home. They found Jessica in the kitchen. Antoinette Alfaro, another partygoer, was holding onto Jessica, and they were both drunk. Elliott asked Jessica several times to come home and tried to pull on Antoinette’s arms to get them apart.
Defendant walked up and separated the two girls. Afterward, he took Elliott aside and told him that his sister had a drinking problem. Defendant appeared to be intoxicated. He was staggering, and his speech was slurred. Based on his tone of voice, defendant seemed upset. Elliott told defendant, in a normal tone of voice, that he knew Jessica had a drinking problem, but he just wanted to get her home, and then he would handle the problem. Elliott also calmly told defendant to “stay out of it.”
Defendant responded by punching Elliott in the right eye with his fist. Other than telling defendant to “stay out of it,” Elliott had done nothing that would have provoked defendant’s attack on him. After defendant hit him, Elliott did not retaliate because he knew defendant was drunk. Instead, Elliott once again tried to get Antoinette off his sister and to get his sister to come home.
After hitting Elliott, defendant seemed angry and started punching a cabinet that was near the back door of the house. One of the cabinet doors broke off its hinges. After Jessica was separated from Antoinette, Elliott, Jessica, Nick, and Darnay started to leave the trailer through the back door, next to the broken cabinet. They were going to go down the hill to the Lane residence. They exited the trailer, and Elliott and Nick went down the stairs. Darnay and Jessica followed them.
Defendant came up to Elliott and asked if everything was “cool.” Elliott responded to defendant’s question with words to the effect, “Yes, if you don’t flip out again.” The two of them may have shaken hands. Thereafter, defendant punched Elliott in the face again. Elliott had not done anything to provoke this attack. Again, Elliott did not fight back. Another partygoer grabbed defendant and walked him away.
Elliott started walking down the open field toward home, with Darnay, Nick, and Jessica following him. Before they left the area of Santos’s trailer, however, defendant came outside holding the door of the broken cabinet. He proceeded down toward the foursome that was already walking down the hill. Jessica asked defendant if he was going to hit her with the door. He looked angry. Defendant yelled, “Hey,” very loudly. When defendant yelled, “Hey,” everyone looked. Elliott turned around. When defendant was a few steps from Elliott, he threw the cabinet door like he was passing a basketball. The corner of the door hit Elliott in the forehead. Elliott dropped to the ground.
After throwing the door at Elliott, defendant ran down to where Elliott was lying on the ground. Elliott was not moving. Defendant bent down and punched Elliott in the face. After punching Elliott, defendant ran away.
Elliott’s head was split wide open, and blood was everywhere. After being taken to Sutter Lakeside Hospital, Elliott was helicoptered to Children’s Hospital in Oakland, where he underwent surgery to repair a fracture to his skull.
The court summarily revoked defendant’s probation in case No. CR5528 on April 9, 2004, based on allegations that defendant had refused to submit to drug testing and possessed marijuana in the county jail. A bench warrant for his arrest was issued. On May 3, 2005, the probation department filed an amended revocation report adding allegations that defendant failed to submit monthly reports on his residence and employment, and failed to maintain contact with the probation department. On September 19, 2005, the court summarily revoked probation. On November 7, 2005, defendant admitted violating probation by violating the law, failing to report, and failing to submit to drug testing.
C. Case No. CR900977
On June 14, 2004, defendant was charged by information with possession of marijuana in jail. (Pen. Code, § 4573.6.) An amended information filed in July 2004 added allegations of probation ineligibility (Pen. Code, § 1203, subd. (e)(4)) and three prior strike convictions (Pen. Code, §§ 667, subds. (b)–(i), 1170.2, subds. (a)–(d)).
On February 28, 2005, the parties stipulated that defendant’s three cases would be heard together.
On November 7, 2005, defendant pleaded guilty to possessing marijuana in jail and the court dismissed the three strike priors on the People’s motion.
According to the probation report summary, as a correctional officer approached defendant in a warehouse at the Hill Road Correctional Facility on March 29, 2004, he observed defendant placing a rolled up baggie into a white cloth bag. Through his training and experience, the officer identified the contents of the baggie as marijuana. The gross weight of the marijuana was 6.6 grams.
D. Sentencing
The court sentenced defendant to prison for six years on count III in case No. CR5528, plus a three-year enhancement for inflicting great bodily injury. He sentenced defendant to a concurrent eight years for count I in case No. CR5528 and a concurrent four years for count II in case No. CR5528. Sentence for the bodily injury enhancement in count II was stayed. The court sentenced defendant in case No. LP31047.10 to a consecutive term of eight months (one-third the middle term) for count II and in case No. CR900977 to a consecutive term of one year, for a total sentence of 10 years 8 months.
Timely notices of appeal were filed in all three cases.
II. DISCUSSION
Defendant contends that: (1) he was denied the benefit of his plea bargain and is entitled either to a reduced sentence or to withdraw his plea, (2) the trial court erred in sentencing him to the aggravated term for child endangerment, (3) the concurrent sentences imposed for counts I and II in case No. CR5528 should have been stayed under Penal Code section 654, and (4) the trial court erred in imposing consecutive sentences based on facts not found by a jury in violation of Blakely v. Washington (2004) 542 U.S. 296.
A. Violation of Plea Bargain
1. Facts
On November 7, 2005, the prosecution and defense informed the trial court that a disposition had been reached in the two pending probation violation cases and on the June 2004 marijuana possession charge. Defense counsel initially represented that defendant’s maximum sentencing exposure in the two probation violation cases had been calculated by both sides to be eight years eight months. He contrasted that with the maximum possible sentence defendant faced in the probation violation cases and in the pending new criminal matter (case No. CR900977), taking into account the latter’s strike allegations, which he believed was 18 years 8 months. He also informed the court that, according to the prosecution, defendant’s exposure in all three cases was even higher—25 years to life.
By way of explanation for the proposed plea agreement, defense counsel stated: “Mr. Shepherd certainly wants to avoid [25 years to life] and wants to avoid the 18 years, eight months that we believe his exposure would be . . . . [¶] Having said all that, I’ve discussed this with Mr. Shepherd and believe that the disposition we have in mind is the admission of [the probation violations] . . . and then entry of a plea in the new matter with the People moving to dismiss the strike allegations. . . . [¶] That would then expose him to a maximum of nine years, four months, with—without significant limitation, but that would be his worse [sic] case scenario then.”
In response, the trial court pointed out that the probation report prepared in connection with defendant’s original case No. CR5528 conviction recommended nine years, as opposed to the eight-year eight-month combined maximum sentence that defense counsel had mentioned earlier as defendant’s maximum exposure just in the probation violation cases. Defense counsel responded to the court as follows: “Well, even if it’s nine we’re still in the same position. . . .Yes, . . . with the combined sentence that would be there could be nine, and we understand that. We’re talking a difference of four months . . . verses [sic] some 20 years . . . .”
Defense counsel later stated to the court, in arguing for defendant’s release on bail pending sentencing, “Clearly, Mr. Shepherd has some significant exposure as a result of the admissions and the plea just entered. However, that exposure pales in comparison to his exposure as of 15 minutes ago.”
In fact, defendant faced a combined potential sentence of nine years eight months in the probation violation cases, consisting of: (1) the upper term of six years for child endangerment in case No. CR5228, plus a three-year enhancement for personally inflicting great bodily injury; and (2) one-third of the two-year middle term for violation of Health and Safety Code section 11377, subdivision (a) in case No. LP31047.01. By pleading guilty to the new charge of violating Penal Code section 4573.6, he faced a further one-year consecutive sentence (one-third of the middle term). Defendant’s actual maximum exposure was thus 10 years 8 months—which is the sentence he ultimately received. The record shows no express representation to or acknowledgment by the defendant of this combined maximum sentence before defendant’s admissions and plea were taken at the November 7 hearing.
The People assert that the possible sentences he faced in each of the three cases were correctly stated to defendant before he pleaded even if no correct total for his combined maximum sentence exposure was ever put on the record. Although confused, the record does not appear to bear out this assertion. The court advised defendant, incorrectly, that he faced a sentence range in case No. CR900977 of 16 months, two years, or three years. That was in fact the range for defendant’s methamphetamine possession conviction in case No. LP31047.01, but the court’s statement attributing this range to defendant’s marijuana possession conviction in case No. CR900977 was never corrected on the record. The actual sentencing range in case No. CR900977—two, three, or four years for violating Penal Code section 4573.6—had been stated earlier by the prosecution. We find no statement in the record correctly specifying the sentencing range defendant faced in case No. LP31047.01, clarifying the conflicting information offered about his exposure in case No. CR900977, or adding up his possible maximum combined sentence in all three cases to their correct total of 10 years 8 months.
However, defendant expressly acknowledged at the hearing that: (1) the only promise made to him to induce him to enter the plea was that the prosecutor would move to strike the three strike priors; and, in particular, (2) no promise had been made to him regarding his eventual sentence.
2. Analysis
Despite the somewhat confused record at the November 7, 2005 hearing, we agree with the People that defendant’s plea bargain was not violated. He had been promised only that the People would move to strike the three prior serious felony convictions, thereby greatly reducing his maximum exposure. The prior convictions were in fact stricken and defendant’s exposure was dramatically reduced. At the same time, defendant was not promised a specific sentence or sentence lid. At most, defendant was misadvised about the consequence of his plea and admissions. The colloquy preceding the entry of his admissions and plea reasonably could have left him with the impression that he would face a maximum sentence of nine years eight months if the strike priors were dismissed when, in fact, his maximum sentence was one year longer than that.
The distinction between violation of a plea bargain and misadvisement of the consequences of a plea was explained in People v. DeFilippis (1992) 9 Cal.App.4th 1876 (DeFilippis) at pages 1879–1880. In brief, if a defendant is misadvised of the consequences of his plea, the error is waived if not raised at or before sentencing, and if not waived is subject to harmless error analysis. (Id. at p. 1879.) In contrast, if the defendant’s plea bargain is violated, the error is only waived by a failure to object at sentencing if the court had advised the defendant of the right to withdraw the plea upon court withdrawal of its approval for the plea, and it is not subject to harmless error analysis if that advisement is not given. (Ibid.) Merely mentioning the maximum sentence that is believed to be possible based on a plea does not make that sentence a term of the plea bargain. (Ibid.)
As defendant points out, a plea agreement is interpreted according to ordinary contractual principles. (People v. Shelton (2006) 37 Cal.4th 759, 767.) The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties, which is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. (Ibid.)
Here, defendant expressly represented that he agreed to enter a plea and admit the probation violations solely in reliance on the prosecution’s promise to move to dismiss the strike priors. The surrounding circumstances under which the parties negotiated the plea agreement were that defendant faced a sentence of nearly 20 years or possibly even 25 years to life if he was found guilty on the new charges and found to have violated his probation. His counsel made it plain by his comments on the record that defendant’s object in entering the plea agreement was to avoid so significant an exposure.
On the other hand, nothing in the record of the November hearing supports defendant’s present interpretation that it was a material purpose of the agreement to limit his maximum sentence to nine years eight months as opposed to 10 years 8 months. Defendant’s postplea conduct confirms that this was not his intent. When the probation department recommended that defendant’s sentence should be 10 years 8 months, defendant neither claimed that such a sentence would violate defendant’s plea bargain nor did he seek to withdraw his plea.
Accordingly, we reject defendant’s argument that the trial court violated his plea bargain and that he is entitled to a reduction in sentence or to withdraw his plea. Defendant makes no claim of misadvisement on this appeal and has, in any event, forfeited such claim by his failure to object in the trial court to the sentence imposed. (DeFilippis, supra, 9 Cal.App.4th at pp. 1879–1880.)
B. Imposition of Upper Term Sentence
Defendant contends that the trial court erred under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) by imposing the upper term sentence of six years for felony child endangerment in case No. CR5528 based on facts neither found by the jury nor admitted by him. In addition, defendant maintains that the trial court erred by failing to find a single factor in mitigation when resentencing him in case No. CR5528 after his probation violation, despite the fact that when defendant was first sentenced the court had found sufficient mitigating factors—including his youthfulness, drug and alcohol problems, and lack of a prior record—to determine that the interests of justice weighed in favor of placing him on probation in lieu of imposing a prison sentence.
1. Cunningham Error
Before considering defendant’s claims, we briefly review the relevant case law. In Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and its predecessor, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that with the exception of facts pertaining to a defendant’s prior convictions, or facts admitted by the defendant, “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.” (Apprendi, at p. 490; Blakely, at pp. 301, 303–304.) At the time of defendant’s March 2006 sentencing hearing, the California Supreme Court had issued its opinion in People v. Black (2005) 35 Cal.4th 1238 (Black I) holding that Blakely did not invalidate California’s determinate sentencing procedures, but certiorari had been granted by the United States Supreme Court to review that issue in Cunningham. (Cunningham v. California (2006) 546 U.S. 1169.) Black I was thereafter overruled on this point by Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].
Upon remand of its decision in Black I following Cunningham the California Supreme Court has recently held that the factual determination of whether a defendant’s prior convictions were “ ‘numerous or of increasing seriousness’ ” comes within the Blakely-Apprendi prior conviction exception, and may be made by the court based on a preponderance of the evidence, and used as an aggravating factor under the determinate sentencing law if found to be true, without violating the defendant’s right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 819–820 (Black II).) Black II also affirmed that under the California’s determinate sentencing law the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at p. 813.)
The trial court in this case found the following circumstances in aggravation: (1) defendant’s prior convictions as an adult or sustained petitions in juvenile proceedings were numerous and increasing in seriousness, (2) he was on probation when the crime was committed, and (3) his prior performance on probation was unsatisfactory. The court also stated: “In response to the challenge to the California sentencing scheme, the defendant’s prior convictions are [a] sufficient circumstance in aggravation in the Court’s mind to justify the upper term for the offenses for which he was convicted of by the jury.”
Based on the holding in Black II, we hold that the trial court committed no Blakely or Cunningham error by sentencing defendant to the upper term of six years for child endangerment in case No. CR5528.
2. Failure to Find Mitigating Factors
Defendant points out that when he was placed on probation in case No. CR5528 in 2003, the court cited the following unusual factors that militated in favor of probation: (1) defendant’s youthfulness had prevented him from fully addressing his substance abuse problems, (2) he did not have a lengthy or serious prior record, (3) the crime lacked sophistication, (4) his likelihood of succeeding on probation and addressing his substance abuse problem was good, and (5) the effect of imprisonment on defendant would be substantial as would be the adverse collateral consequences. According to defendant, because the court in 2006 ignored the circumstances in mitigation that it found to exist in 2003, it conducted no weighing process and, therefore, the aggravated term was not available. He likens this to so-called Covino error based on the holding in People v. Covino (1980) 100 Cal.App.3d 660 (Covino) ordering a new sentencing hearing based on a finding that the trial court improperly limited itself in sentencing to considering only those circumstances in mitigation that were specified in former California Rules of Court, rule 423 (now rule 4.423). (Covino, at p. 670.)
We do not find the analogy to Covino convincing. There is no evidence in the record that the court limited its consideration of possible factors in mitigation. The factors cited in September 2003 were simply not very persuasive in March 2006, in light of the events that transpired in between. Defendant was three years older. He had been given an opportunity to address his substance abuse problems, and to succeed on probation, and had failed to make any positive use of either opportunity. Instead, he had been convicted of possessing marijuana in jail, only adding to the length and seriousness of his criminal record. With the benefit of the hindsight it gained after 2003, the trial court was entitled to reassess the gravity of defendant’s conviction offense in 2006, and to make a new evaluation of the likely effect on the defendant and the community of imposing a significant state prison sentence. That the court did not fall back on any of the mitigating factors that it found in 2003 is neither surprising in light of subsequent events nor can it be construed as any proof that the court closed its eyes to possible mitigating factors.
In fact, the record shows the court gave extensive consideration to possible mitigation. The probation report, which cited no factors in mitigation and recommended the upper term in case No. CR5528, had put the defense on notice that it carried a burden of persuasion on that issue. The defense submitted a sentencing brief with attachments, which the court stated it had reviewed. At the sentencing hearing, the defense put a representative from a the tribal health program on to testify about defendant’s chances for success in a residential substance abuse program to which he had been accepted. Before pronouncing sentence, the court heard argument about possible mitigating factors from the defense and the prosecution.
On this record, defendant fails to meet his burden of establishing Covino error or demonstrating that the trial court otherwise acted improperly or abused its discretion in finding no mitigating factor and in sentencing defendant to the upper term. Since no error has been shown, we do not reach defendant’s alternative claim that his trial counsel was ineffective for failing to object to the court’s asserted failure to consider mitigating factors.
C. Failure to Stay Sentences in Case No. CR5528
Penal Code section 654 provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (Pen. Code, § 654, subd. (a).)
Defendant was convicted in case No. CR5528 of mayhem (count I), assault with a deadly weapon, which specified defendant’s throwing of the cabinet door (count II), and child endangerment (count III). Count III (as well as count II) was enhanced with a bodily injury allegation, suggesting that it too was based on the throwing of the cabinet door. In addition to imposing six-year state prison term for count III, enhanced to nine years by the bodily injury true finding, the trial court also imposed concurrent sentences on counts I and II, and stayed the bodily injury enhancement on count II. Defendant contends that under Penal Code section 654, the trial court should have stayed sentence on counts I and II instead of imposing concurrent sentences because the concurrent sentences punish the same act—throwing the cabinet door at Elliott—that is punished by the principal term of six years imposed for count III.
A concurrent sentence is considered punishment because the defendant is deemed subject to the terms of both sentences even though they are served simultaneously. (People v. Cruz (1995) 38 Cal.App.4th 427, 434 (Cruz).)
The People argue that we should affirm the concurrent terms on the theory that defendant’s offenses had multiple victims. According to the People, defendant’s throwing of the door toward Elliott endangered and constituted an assault upon the three other minors who were walking near Elliott—Jessica, Nick, and Darnay—even though Elliott was the only victim named in the information. A defendant may be convicted and punished for each crime of violence where there are multiple victims exposed to harm by his conduct even if the conduct was only intended to harm one of the victims. (See People v. Centers (1999) 73 Cal.App.4th 84, 99 (Centers); Cruz, supra, 38 Cal.App.4th at pp. 434–435.) The People point out that Centers rejects any requirement that all of the victims be named in the information, or found to be victims by the jury, for the multiple-victim exception to Penal Code section 654 to apply. (Centers, at pp. 100–101.)
Centers is a pre-Blakely case. Defendant counters the People’s argument that no jury finding is required by citing Blakely and Cunningham. For the reasons discussed post, we have no occasion to decide whether Blakely’s jury trial requirement extends to this context.
A trial court’s implied finding that Penal Code section 654 is inapplicable must be sustained unless it is unsupported by substantial evidence. (See People v. Nelson (1989) 211 Cal.App.3d 634, 638; People v. Green (1996) 50 Cal.App.4th 1076, 1085.) The People properly concede that Elliott was the only victim of the mayhem count, which necessarily requires proof of battery and serious bodily injury. (See Pen. Code, § 203; People v. Ausbie (2004) 123 Cal.App.4th 855, 859, disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.) With respect to count II, the trial court’s implied finding that Jessica, Darnay, and Nick were victims of defendant’s assault with a deadly weapon is not, in our view, supported by substantial evidence. The evidence showed that on the evening of the offense defendant’s alcohol-fueled hostility had been exclusively directed at Elliott. When defendant threw the cabinet door at Elliott, he was standing just a few steps away from him. There was no evidence that the others were standing close enough to Elliott at that moment to be endangered by defendant’s act.
Because no substantial evidence supports the imposition of concurrent sentences on counts I and II, we will modify the judgment to stay the sentences on those counts.
D. Imposition of Consecutive Sentences
The trial court determined that the eight-month sentence imposed in case No. LP31047.01, and the 12-month sentence imposed in case No. CR90097 would run consecutively to the principal term imposed in case No. CR5528. Defendant contends that such consecutive sentencing by the court constitutes Blakely error. As defendant acknowledges, Black I held that Blakely does not apply to the imposition of consecutive sentences under Penal Code section 669. (See Black I, supra, 35 Cal.4th at pp. 1261–1264.) Black I remains good law on that point, and this aspect of the case was recently reaffirmed by the California Supreme Court in Black II. (Black II, supra, 41 Cal.4th at pp. 820–823.)
The imposition of consecutive sentences therefore did not violate Blakely.
III. DISPOSITION
The judgment is modified to stay the eight-year sentence on count I and the four-year sentence on count II, pending finality of the judgment and service of the nine-year enhanced sentence for count III, such stay to become permanent upon completion of the enhanced sentence for count III. The trial court is ordered to prepare an amended abstract of judgment to reflect this modification and to forward the amended abstract to the Department of Corrections. As so modified, the judgment is affirmed.
We concur: Stein, Acting P.J., Swager, J.