Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. PA042525Charles L. Peven, Judge.
Michael J. Egan and Lisa Ferreira, under appointments by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Jamie K. Smith appeals from the judgment entered upon his conviction by jury of making a criminal threat, a felony, and vandalism causing under $400 in damage, resisting a peace officer, and driving under the influence of alcohol, each a misdemeanor (Pen. Code, §§ 422, 594, subd. (a), 148, subd. (a)(1); Veh. Code, § 23152, subd. (a)). He admitted a prior felony conviction within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and section 667, subdivision (a), as well as a felony for which he served a prison term within the meaning of section 667.5, subdivision (b), which was stricken in the interest of justice. He was sentenced to 11 years in prison, including the three-year upper term, doubled, for making a criminal threat.
All further statutory references are to the Penal Code unless otherwise specified.
Appellant contends that (1) the evidence was insufficient to support his conviction of making a criminal threat; (2) his conviction of making a criminal threat must be reversed because the jury was given two theories on which it could find him guilty, one of which was legally inadequate; (3) the trial court erred in denying his motion for mistrial made on the ground that the jurors heard a prospective alternate juror’s “intuitive” claim of knowledge that appellant was guilty; and (4) imposition of the upper term for making a criminal threat violated his Sixth Amendment right to jury trial.
This court issued its opinion in this matter on October 3, 2005, and the California Supreme Court denied review. The United States Supreme Court granted appellant’s petition for writ of certiorari, vacated the judgment, and remanded the matter for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). The parties have submitted supplemental briefing on the effect of Cunningham and of the California Supreme Court’s opinions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
Except for our discussion in part IV, this opinion is substantially the same as the opinion filed on October 3, 2005.
FACTS
We view the evidence in accordance with the usual rules on appeal. (People v. Snow (2003) 30 Cal.4th 43, 66.) At approximately 3:30 a.m. on October 22, 2002, two California Highway Patrol (CHP) officers, Efrem Moore and Jason Perniciaro, observed appellant driving at a speed of over 90 miles per hour southbound on the 5 Freeway north of San Fernando Mission Boulevard. The officers pursued the vehicle and directed appellant to pull over. When Moore asked for appellant’s driver’s license, registration, and proof of insurance, appellant could not produce a driver’s license or a vehicle registration card. Appellant’s eyes were red and watery and an odor of alcohol was coming from inside the vehicle. Moore believed appellant was under the influence and asked him to get out of the car. Appellant staggered and was unsteady on his feet, and an odor of alcohol emitted from his breath. Moore conducted several sobriety tests. Based on appellant’s performance on these tests, as well as two administrations of the preliminary alcohol screening test that revealed blood alcohol levels of 0.10 and 0.08 percent, Moore and Perniciaro formed the opinion that appellant was intoxicated.
Moore placed appellant under arrest and handcuffed his hands behind his back. Appellant was cooperative up to this point. Although Moore was able to place a finger between appellant’s wrists and the handcuffs, appellant yelled that the handcuffs were “too fucking tight” and complained that his hands were going to swell. Moore told appellant he would check the handcuffs as soon as he could, but he first had to search appellant and place him in the patrol car. In accordance with established procedure, Moore then called his sergeant to have him check whether the handcuffs were too tight. When appellant became agitated, Moore told appellant that the sergeant was on his way. Moore closed the car door and went to check on the female passenger who was still seated in appellant’s car.
Appellant, who was yelling and cursing at Moore, began kicking the window of the patrol car, still yelling, “The fucking cuffs are too tight. You got to get them off me.” Moore told him that his handcuffs would be examined as soon as the sergeant arrived, and he warned appellant not to kick the window again. Appellant told Moore that if Moore did not loosen the handcuffs, he would kick out the window. Perniciaro called for backup because appellant was starting to get belligerent. As Moore was checking on the passenger, he heard a crash and saw that the rear window of his vehicle was shattered. Appellant was on his back on the rear seat of the patrol car and his feet were outside the car. Appellant said, “I told you the cuffs were too tight.”
The two officers carried appellant from the vehicle and placed him on his stomach on the ground. Moore held him down by placing his knee on appellant’s back while Perniciaro placed leg restraints on appellant. Appellant stated, “I’ll kick your ass. Let’s fight. We can fight this out. . . . I’ll kick your ass, nigger.” Appellant also mentioned the Aryan Nation or Aryan Brotherhood. For the next five to 10 minutes, while Moore and Perniciaro waited for additional officers to arrive, appellant called Moore a nigger and said that he was going to kick Moore’s ass at least 20 times. He also said he would kick Perniciaro’s ass and that he would get the Aryan Brotherhood after Perniciaro.
Moore is African-American, and appellant is Caucasian.
When additional officers arrived, appellant was placed in another patrol car. A search of appellant’s vehicle revealed a two-thirds full bottle of liquor and two empty beer cans, as well as seven 16-ounce cans of cold beer in an ice chest. During the drive to the Van Nuys police station, appellant spat on the back seat. Moore, who was in the vehicle, placed a spit sock on appellant’s head. Appellant again said he would kick Moore’s ass, continued to call Moore a nigger, and mentioned the Aryan Brotherhood a few times.
At the Van Nuys police station, appellant was taken to a medical screening room because of his claimed injuries. His handcuffs and leg restraints were removed. Appellant refused to submit to a blood or breath test, stating, “I don’t want you to prove my D.U.I.” He complained that the officers had beaten him and that he had bruises all over his body, although Moore did not see any bruises.
Appellant then looked directly at Moore and stated that he “was going to get some boys from Oildale and come and kill [Moore].” Appellant made his hands in the form of a gun and said, “Bang, bang, you are dead.” Moore was “concerned for [himself], and then concerned for [his] family” that harm might come to them as a result of this incident, because he, his wife, and his young daughter lived in Bakersfield, about 15 minutes away from Oildale. His family was active in the community, and the Bakersfield CHP office was not far from Oildale. He was aware that Oildale was a very racist town and that the Aryan Brotherhood was known to exist there, and he knew that some people who had been arrested in Oildale were affiliated with the Aryan Brotherhood. Moore was afraid that appellant “was going to get his . . . Aryan Nation friends or brothers and come and . . . get [him].” He testified, “I feared, yes. To hear somebody mention a town that you don’t live very far from, that they are going to come and get you, that did give me some fear.” He testified that he thought about the incident all that day and that he felt concerned for the safety of himself and his family “every time a trial comes up. It’s just ongoing.” Although appellant was in custody at that point, Moore did not know how long he would remain in custody.
Perniciaro testified that appellant looked at Moore and said, “‘Me and the boys are going to get you.’” Appellant made a “gun motion” towards Moore with his hands and said, “‘Bang, bang, you are dead.’” Perniciaro did not hear appellant mention Oildale, but he saw Moore’s face turn white and testified that Moore looked surprised and upset. Appellant told Perniciaro that the Aryan Nation was going to come after him as well.
Alex Pesdanas, a nurse at the jail medical facility, heard appellant speaking loudly to Moore. He heard appellant say the word “dead” as appellant gestured towards Moore with his hand in the form of a handgun and clicked his thumb. Pesdanas said, “Isn’t that a 422?” He testified that “at the very least [Moore] was upset.”
In defense, appellant testified that he had been drinking beer at approximately 8:00 p.m., about seven and a half hours before his arrest. When Moore placed the handcuffs on him, they were too tight and his hands became swollen and cut. He politely asked Moore to loosen the handcuffs, but Moore told him they were not built for comfort and then walked away. Nobody ever loosened the cuffs, and the officers stood outside the car, laughing. Appellant asserted that it was physically impossible for him to have kicked the window and that it must have broken when Moore slammed the door shut. He claimed that after he was dragged out of the car, Moore choked him, and he had bruises on his arm caused when one of the officers kicked him. He testified that he was not a member of the Aryan Nation or of any other white supremacist group, but was a member of the International Brotherhood of Electrical Workers, a union. He acknowledged having called Moore a “F-n nigger” when Moore choked him, but he claimed that he never threatened to kick Moore’s ass or to get the boys and come and get him. His hands were handcuffed behind him at the police station and he did not make a gun gesture, say “Bang, bang, you’re dead,” or mention Oildale.
DISCUSSION
I. The evidence was sufficient to support appellant’s conviction of making a criminal threat.
Appellant contends that the evidence failed to establish the requisite elements of the offense of making a criminal threat in violation of section 422. This contention is without merit.
“In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat . . . was ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Appellant argues that the evidence failed to establish that Moore experienced fear; that if he did, such fear was not sustained; that appellant’s statement would not have caused a reasonable person in Moore’s position to have experienced sustained fear; and that the purported threat did not have an immediate prospect of execution.
The evidence amply established that Moore was in sustained fear. Moore was aware that Oildale, a town located near where he lived with his family, was a racist area with many Aryan Brotherhood affiliates, and he testified that “[t]o hear somebody mention a town that you don’t live very far from, that they are going to come and get you, that did give me some fear.” Perniciaro and Pesdanas both testified that Moore looked upset after appellant uttered the statement and made a hand gesture simulating a gun. Moore testified that he continued to experience this fear “every time a trial comes up. It’s just ongoing.” This certainly “extend[ed] beyond what is momentary, fleeting, or transitory,” the definition of “sustained fear.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The omission of appellant’s remarks about Oildale and the Aryan Brotherhood from Moore’s police report in no way suggest that he was not in sustained fear.
In his report, Moore wrote that appellant said, “‘Me and the boys are going to come after you. You are dead.’”
Not only must the victim be in sustained fear, but the sustained fear must be reasonable under the circumstances. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) Even though appellant’s threat to Moore was made in front of other individuals, including peace officers, and even if it was made while appellant was in an intoxicated state, a rational trier of fact could have found that the threat did not merely constitute “ranting,” as appellant suggests (see People v. Teal (1998) 61 Cal.App.4th 277, 281), and it could have found that Moore’s fear was reasonable.
A rational trier of fact could also have determined that appellant’s threat had an immediate prospect of execution. There were no conditions to this threat; appellant made a gesture in the form of a gun and threatened Moore that he was going to get some boys from Oildale and come and kill him. A threat may convey an immediate prospect of execution even where the defendant has been arrested or incarcerated. (See People v. Gaut (2002) 95 Cal.App.4th 1425, 1431-1432; People v. Franz (2001) 88 Cal.App.4th 1426, 1448-1449.) Although Moore might have suspected that appellant would remain in custody for some time, the threat that appellant was going to “get some boys from Oildale” and come and kill him was unequivocal and specific and could well have conveyed to Moore the immediate prospect of its execution. (See People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.) Substantial evidence supports appellant’s conviction of violating section 422.
II. The jury was not instructed on an inadequate theory with respect to the criminal threat charge.
Appellant contends that his conviction of making a criminal threat must be reversed because the jury was presented with two theories, one of which was legally inadequate, as to the element that the threatening statement caused the victim reasonably to be in sustained fear. This claim lacks merit as well.
The prosecutor argued that the jury could find appellant guilty if it found that Moore “was scared not only for himself but for his family . . . .” The jury was instructed by the trial court that it had to find that the threat to Moore caused Moore reasonably to be in sustained fear for his own safety or that of his immediate family. Appellant argues that the latter theory, Moore’s fear for the safety of his family, was legally inadequate because the language of section 422 referring to “sustained fear for . . . his immediate family’s safety” logically applies only where the perpetrator has threatened to harm a member of the person’s immediate family.
By failing to object to the prosecutor’s remarks in the trial court, appellant has waived the claim that the prosecutor presented a legally incorrect theory. (People v. Morales (2001) 25 Cal.4th 34, 43-44.) Moreover, we reject the claim that the jury was instructed on a legally inadequate theory when the trial court instructed it that to find appellant guilty, it had to find, inter alia, that Moore was reasonably placed in sustained fear for his own safety or that of his family.
Section 422 provides as follows: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
Section 422 applies to a person who “threatens to commit a crime which will result in death or great bodily injury to another person . . . .” (Italics added.) It proscribes the making of a statement that conveys “to the person threatened” an immediate prospect of execution of the threat where the statement made by the defendant “thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety . . . .” (Italics added.) The statute thus expressly refers to a fear for the safety of the immediate family of the person threatened. It does not require that the victim of the threatened crime be the person about whose safety the threatened person has a fear. Thus, the statute does not require a threat to the safety of a family member before it may apply to a fear for the safety of that family member. In determining the meaning of a statute, “our primary objective is to ascertain and effectuate the legislative intent, turning first to the statutory language, giving effect to the ordinary meaning of the words employed. [Citation.] ‘Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.’ [Citations.]” (Robert F. Kennedy Medical Center v. Belshe¢ (1996) 13 Cal.4th 748, 756.) We are not persuaded that the Legislature intended that the statute be read as appellant suggests, and we conclude that the jury was not instructed on a legally erroneous theory.
III. The trial court properly denied appellant’s motion for mistrial.
During voir dire of prospective alternate jurors, a prospective alternate juror stated that she had a problem serving as a juror on this case because she was “intuitive,” “being able to key into people’s psyche to know what’s going on,” and she felt that she already knew the “situation.” The trial court stated, “With all due respect to you, that’s ridiculous. . . . [Y]ou are telling me now that you know what happened in this case?” The prospective juror said, “No.” The trial court continued, “You haven’t heard one word, one witness. And just because you -- here’s a man sitting here and you know what some charges are against him, you know all about it now?” The prospective juror said, “No, I didn’t say I know about the case. I just said --” When the trial court asked what she knew about it, the prospective juror asked the trial court if it wanted to hear her “instinct about it all,” because she did not want to prejudice the jury.
The trial court stated, “I don’t want to prejudice the jury either. [¶] You say you have got some preconceived notions about the case already?” The prospective juror stated, “Yes, I do. I feel like he is guilty.” She explained that she had been sitting there “tuning into the whole situation” and “thinking about this for quite a while,” and she felt that appellant was guilty. She stated that she got paid for doing “this type of work” professionally and that she was being honest with the trial court. When the trial court excused her, she stated, “I know it’s -- it sounds strange. It’s just a gift.”
The trial court stated, “We all know it’s ridiculous. [¶] Anybody influenced by the fact that this lady just got up here and said in her opinion that this --” The jurors collectively responded in the negative. When one prospective juror raised his hand, the trial court stated, “Mr. [Juror No. 5708], you know you are sort of acting out of line here, you know. You took an oath . . . earlier today to tell the truth, answer all the questions truthfully, all that. And you are doing your damndest to get out of this jury, aren’t you?” The prospective juror stated, “Yes.” The trial court admonished him that he had just been sworn as a juror and he would not be excused, further stating, “[A]nd I expect that you will fulfill your oath. Because you took an oath and that oath has consequences. And I expect that you will do that. [¶] You understand what I am telling you?” The juror responded, “Hum.”
The trial court again asked, “Anybody influenced by the fact that the lady now comes in with her powers and just walked into the courtroom, has got some kind of powers, and she said he’s guilty, that, and in her mind that he is guilty? Anybody influenced by that?” The jurors collectively responded in the negative.
Before the alternate jurors were finally selected and sworn, defense counsel moved for a mistrial based on the comments of the prospective juror. He argued that the prospective juror had presented herself as a professional and that if there were individuals who would pay for her services, there might be persons on the jury who “would be equally susceptible to this type of belief.” He further argued that since, in television shows, the police call in psychics, the jurors might infer that she was similar to a police department expert witness, since “[w]ho else’s going to pay an individual to do this type of work other than law enforcement?” The prosecutor responded that the prospective juror had admitted she had no facts about the case and that when the trial court inquired of the rest of the prospective jurors, one prospective juror had jokingly said he believed her but the others did not.
The trial court denied the motion for mistrial, stating, “I think we’ve adequately covered it. . . . I think it was made plain at the time [that it was] ridiculous. I noticed the reaction of the other jurors. They all sort of opened gape mouthed themselves. Most of them were laughing at [the prospective juror.] And I did ask them specifically once she was excused, anybody going to be influenced by that, her beliefs. They all unanimously stated they would not. [¶] And obviously we had sort of a rogue juror, so to speak, but [the prospective juror] has been excused. And everybody has indicated that they won’t be influenced by her opinions and conduct.”
Appellant contends that the trial court abused its discretion in denying his motion for mistrial. He asserts that the trial court did not admonish the jury to disregard the prospective juror’s statements and that since she said she was paid to determine people’s guilt, some of the jurors might have logically concluded that it was the police department that paid for her services, thus imbuing her opinion with undue credibility. This contention is without merit.
“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. [Citation.]” (People v. Silva (2001) 25 Cal.4th 345, 372.) Since the alternate jurors had not been sworn and trial had not yet begun, “it is doubtful that a mistrial motion, rather than a motion to quash or dismiss the venire, was procedurally correct.” (Id. at pp. 372-373.)
In any event, no incurable prejudice existed here. Although the trial court did not, in so many words, admonish the jury to disregard the prospective juror’s statements, it repeatedly labeled those statements “ridiculous,” pointing out that the woman had not heard any evidence about the case before forming her opinion. The woman herself called her belief an “instinct.” The trial court observed, without objection by defense counsel, that the other jurors all were open-mouthed and most were laughing at the prospective juror’s statements, and although the trial court twice asked if any prospective juror would be influenced by that individual’s opinion, no prospective juror indicated that he or she would be so influenced. The suggestion that the jurors might have assumed that the prospective juror was paid by police is mere speculation not supported by anything in the record.
Moreover, the jurors were instructed in accordance with CALJIC No. 1.00 that they were to “determine what facts have been proved from the evidence received in the trial and not from any other source,” and that “[a] fact is something that’s proved by the evidence.” They were also instructed in accordance with CALJIC No. 1.03 that they were not to “consider or discuss facts as to which there is no evidence” and were not to “consult . . . persons for additional information.” Despite the nature of the statements made during voir dire -- or perhaps because of the nature of the statements -- we will not assume that the jury was unable to follow the specific instructions given when the case was submitted for decision. “Jurors are presumed to understand and follow the court’s instructions.” (People v. Holt (1997) 15 Cal.4th 619, 662.) The trial court was well within the sound exercise of its discretion in denying the motion for mistrial.
IV. Imposition of the upper term did not violate appellant’s constitutional rights.
At sentencing, the trial court imposed the upper term for the criminal threat count, finding in aggravation that appellant’s prior convictions were numerous and of increasing seriousness, he had served prior prison terms, and his prior performances on probation were unsatisfactory.
The record reflects that between 1989 and 1991, appellant sustained misdemeanor convictions of reckless driving, driving with a blood alcohol level higher than .08 percent, and driving with a suspended license and engaging in a speed contest. In each case he was placed on probation and violated that probation. In 1991, he was convicted of another count of driving with a suspended license and was again placed on probation. In 1995, following his arrest in 1994 for driving with a blood alcohol level of over .08 percent, two weapons charges, evading a peace officer and negligent discharge of a firearm, he sustained felony convictions for evading a peace officer and negligent discharge of a firearm, for which he was placed on probation. Approximately a year later, he was arrested for felonious assault and making criminal threats, and in 1996, after he was convicted of felonious assault, he was sentenced to prison.
Appellant contends that the imposition of the upper term violated his federal constitutional rights to a jury trial, proof beyond a reasonable doubt, and due process. This contention is without merit. For the reasons set forth in Black, supra, 41 Cal.4th 799, we find no constitutional violation in the trial court’s imposition of the upper term.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that “[o]ther 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.” (Id. at p. 490.) The Supreme Court subsequently held that “the ‘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.” (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely).) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) The court therefore concluded that the California determinate sentencing law (DSL) was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 871].)
Citing Cunningham, Blakely, Apprendi and Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), our Supreme Court has reiterated that the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, 41 Cal.4th at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836-837.) Moreover, the “‘prior conviction’ exception” to the requirement of a jury trial 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.” (Black,supra, at p. 819.) The court concluded that, within the dictates of Cunningham, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstances has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black, supra, at p. 816.) Further, “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 fact finding 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, at p. 812.)
Appellant admitted having suffered a prior felony conviction for which he served a prison term. The trial court’s determination that appellant’s prior performances on probation were unsatisfactory was the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black, supra, 41 Cal.4th at pp. 819-820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Our Supreme Court has expressly held that a trial court’s determination that a defendant’s prior convictions were numerous and of increasing seriousness does not require a jury determination. (Black, supra, at pp. 819-820.) Thus, all three circumstances on which the trial court relied in selecting the upper term were in accord with constitutional dictates.
While the trial court incorrectly stated that appellant had served prior prison terms, service of a single prison term constitutes a circumstance in aggravation. (Cal. Rules of Court, rule 4.421(b)(3).) The trial court struck the prior prison term allegation under section 667.5, subdivision (b). Thus, there was no improper dual use of facts. (See People v. Velasquez (2007) 152 Cal.App.4th 1503, 1516, fn. 12.)
The issue of whether a trial court can constitutionally impose an upper term based on the fact that the defendant’s prior performance on probation was unsatisfactory, without a jury determination, is currently before the California Supreme Court in People v. Towne, S125677, review granted Jul. 14, 2004, additional briefing permitted Feb. 7, 2007.
Appellant challenges the Black decision in several regards as violating his constitutional rights as set forth in Blakely and Cunningham. He challenges Black’s holding that one constitutional aggravating factor makes the upper term the statutory maximum and that all additional judicial fact finding is permissible; he asserts that Black erred in embracing the exception for prior convictions in Almendarez-Torres, supra, 523 U.S. 224, because that decision is of questionable validity, and that Black erred in reading Almendarez-Torres to encompass recidivist factors beyond simply the fact of a prior conviction; and he argues that Black erred in holding that the fact of a prior conviction and other recidivist factors may be found true by a preponderance of the evidence. Appellant raises these claims to preserve them for federal court review. As he acknowledges, we are bound by the Black decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant further claims that he is denied due process and subjected to an ex post facto law by the application in this appeal of what he terms Black’s “altered version of the DSL.” He is mistaken. “[T]he prohibition on ex post facto laws applies only to statutory enactments, not to judicial decisions.” (Sandoval, supra, 41 Cal.4th at p. 855.) Since appellant was on notice that he could receive the upper term under the statute governing his offense, due process is satisfied. (See id. at pp. 856-857.) In any event, this claim is inapplicable to appellant’s case, since all of the factors on which the trial court relied were constitutional without a jury finding.
Appellant complains of Black’s “new, unexpected . . . bifurcated sentencing scheme” and its “new and unexpected system for appellate review of that sentencing decision.” This refers to Black’s distinction between the two functions served by aggravating circumstances: first, “to raise the maximum permissible sentence from the middle term to the upper term,” and, second, “to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense.” (Black, supra, 41 Cal.4th at pp. 815-816.)
Since the imposition of the upper term did not violate appellant’s constitutional rights, we do not reach his argument that remand for resentencing under the scheme set forth in Sandoval would violate the state and federal prohibitions against ex post facto laws and guarantees of equal protection.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.