Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, John L. Davidson, Judge, Super. Ct. No. SCD194854.
AARON, J.
I.
INTRODUCTION
Defendant Khanh Truong appeals from a judgment of conviction and sentence. Truong was charged in an information with two counts of attempted robbery, possession of an illegal weapon (a billy club), petty theft with a prior theft conviction and receiving stolen property. The information also alleged that Truong had served a prior prison term. A jury found Truong guilty of possessing an illegal weapon, and the trial court found true the prison prior allegation.
Truong challenges his conviction for possession of an illegal weapon on two grounds. Truong first contends that there is not substantial evidence to support the verdict. He next contends that his conviction must be reversed because the trial court failed to properly instruct the jury on the definition of "possession."
Truong also challenges his sentence on two grounds. Truong contends that his sentence should be modified because the trial court improperly made dual use of the fact that Truong has served a prior prison term by using it both to impose a one-year enhancement, as well as to impose the upper term. Finally, Truong contends that the trial court erred in imposing the upper term because in doing so, the court relied on facts that were not found by the jury, thereby violating Truong's Sixth Amendment right to a jury trial.
We reject Truong's challenges to his conviction; the verdict is supported by substantial evidence, and the trial court properly instructed the jury. We also reject Truong's contention that the trial court used his prior prison term both to enhance his sentence and to impose an upper term, because the trial court relied on different, although related, factors to enhance the sentence and to impose the upper term. Finally, we reject Truong's contention that the trial court erred in imposing the upper term based on aggravating facts that were neither found by the jury nor admitted by Truong, in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S.____ [27 S.Ct. 856] (Cunningham). We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural background
On January 31, 2006, an amended information was filed charging Truong with two counts of attempted robbery (Pen. Code, §§ 664/211) (counts 1 and 2); possession of an illegal weapon (i.e., a billy club) (§ 12020, subd. (a)(1)) (count 3); petty theft with a prior theft conviction (§ 484) (count 4); and receiving stolen property (§ 496, subd.(a)) (count 5). The information also alleged that Truong had suffered one prison prior, within the meaning of section 667.5, subdivision (b).
Further statutory references are to the Penal Code unless otherwise indicated.
A jury found Truong guilty of possession of an illegal weapon (count 3), and not guilty of theft (count 4) and receiving stolen property (count 5). The jury could not reach verdicts on counts 1 and 2, attempted robbery. The court declared a mistrial as to counts 1 and 2 and granted the People's motion to dismiss those counts.
Truong waived jury trial on the prior prison term allegation. The trial court found true the allegation that Truong had served a prior prison term and failed to remain free from prison custody for a period of five years after his release from prison.
On March 13, 2006, the trial court sentenced Truong to an aggregate term of four years, which included the upper term of three years, and an additional year for the prison prior enhancement, pursuant to section 667.5, subdivision (b).
On August 30, 2006, Truong moved to have his notice of appeal deemed timely filed under a theory of constructive notice of appeal. On September 14, 2006, this court granted the motion and ordered the notice of appeal filed.
B. Factual background
On September 4, 2005, James Pratt, the owner of a company that supervises parking lots for apartment complexes, was patrolling the parking lot of a large apartment complex on Fulton Street in San Diego. Vehicles belonging to apartment residents were assigned specific spaces, and only vehicles with permits were allowed to park in the complex's lot. At approximately 3:30 p.m., Pratt noticed a truck that did not have a permit and that was not assigned to the space in which it was parked. Pratt called a towing company.
Casey Wescott, a tow truck driver, responded to Pratt's call. Wescott attached the vehicle to his tow truck, and he and Pratt got inside the tow truck. At the point when the vehicle had been lifted approximately three feet off the ground, someone came out of an apartment and jumped into the vehicle's driver's seat. As this was happening, three other people were standing in the doorway of that same apartment. One of the persons who was standing in the doorway of the apartment yelled, "Get the gun. Get the gun." Truong, who apparently was one of the persons who had been standing in the doorway, casually walked up to a maroon Honda Accord that was parked on the street, opened the
Wescott described the manner in which Truong approached the Honda Accord as "like a gang walk, gang-member-type walk."
passenger side door and reached into the car. Pratt could not see what Truong was doing in the car, but said that when Truong returned, he "had a black handled object that he quickly put in his waistband." Pratt could see only a couple of inches of the object above Truong's waistband.
Wescott could see about four inches of a black handle sticking out from Truong's waistband as Truong walked back toward the tow truck. Truong had his hand on the object in his waistband. Believing that the object in Truong's waistband was a gun, Pratt told Wescott to drop the vehicle. Wescott released the truck, and Pratt and Wescott quickly drove away from the scene.
Pratt used a telephone in the manager's office in the apartment complex to call police to report the incident. Officers arrived approximately 10 to 15 minutes later. Pratt told San Diego Police Officer Robert Stites that Truong had what Pratt believed was a gun sticking out of the waistband of his shorts. Westcott told Officer Stites that he also believed Truong had been carrying a handgun. Officer Stites went to the area where the incident had taken place to look for the maroon Honda and the truck Wescott had attempted to tow, but both vehicles were gone.
Officer James Stevens stopped Truong driving a maroon Honda approximately half a mile from the Fulton Street apartment complex where the incident occurred. Truong was alone in the car. Pratt and Wescott both identified Truong as the person who they believed had a gun. Officer Stevens placed Truong under arrest and conducted an inventory search of the maroon Honda. In the trunk, Officer Stevens found a "black nylon bag" that contained a number of items, including a metal collapsible baton. The parties stipulated that the baton was a billy club, which is illegal to possess pursuant to section 12020, subdivision (a). The bag also contained pliers, sunglasses, stereo components and wires. Officer Stevens did not find a gun in the car.
At trial, Pratt testified that the collapsible baton found in the Honda could have been the object Pratt saw in Truong's waistband that day. Wescott testified that "it [wa]s a good possibility" that the baton shown in court was the item Westcott had seen in Truong's waistband during the incident.
Truong was not the registered owner of the maroon Honda. However, the Honda was registered to a woman with the same last name and the same home address as Truong. Truong had in his possession a key ring on which there was a key for the house at that address, as well as keys to the Honda. A check stub with Truong's name on it, dated approximately a week before the incident, was found in the car's glove compartment.
III.
DISCUSSION
A. Truong's challenges to his conviction
1. Substantial evidence supports the verdict
Truong contends that the evidence was insufficient to establish that he knew there was a billy club inside the black bag that police found in the trunk of the Honda he was driving. We conclude that the evidence was sufficient to support the jury's verdict.
In considering a claim challenging the sufficiency of evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses any substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) "Substantial evidence" is evidence that is reasonable, credible, and of solid value. (Ibid.) This same standard applies regardless of whether a conviction is based on direct or circumstantial evidence, since circumstantial evidence may constitute sufficient evidence of guilt. (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).) "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt." (Id. at pp. 1053-1054.) "'"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]"' [Citation.]" (Id. at p. 1054.)
The evidence established that Truong retrieved a black-handled object from the Honda and put the object in his waistband. Pratt saw approximately two inches of the handle of the object sticking out from Truong's waistband. Wescott saw approximately four inches of a black handle above Truong's waistband. Although at the time of the incident both Pratt and Wescott believed that the object in Truong's waistband was a gun, at trial, both men testified that the billy club recovered from the Honda could have been the object Truong was carrying in his waistband that day. Wescott stated that there was a "good possibility" that the billy club was the object he had seen protruding from Truong's waistband. Further, although the Honda was registered under someone else's name, that person shared Truong's last name and his home address, and Truong had keys to the car. Officer Stevens found a check stub with Truong's name on it, dated one week earlier, in the glove compartment of the Honda. Truong was the only person in the vehicle when he was stopped by police. No gun was found in the car.
The jury could have reasonably inferred from this evidence that the object Truong retrieved from the Honda and placed in his waistband was the billy club that police later found in the trunk of the Honda. The jury could also reasonably have inferred that Truong knew that the billy club was in the trunk of the car he was driving. The evidence was thus sufficient to support the jury's verdict on count 3.
2. The trial court properly instructed the jury
Truong contends that the trial court gave the jury an incomplete instruction as to section 12020, subdivision (a)(1) by failing to provide the jury with a definition of "possession." The court instructed the jury with regard to the charge of unlawfully possessing a weapon as follows:
"Now, the defendant is charged in count 3 of the information with unlawfully possessing a weapon, specifically a billy club. To prove that the defendant is guilty of this crime, the People must prove that, number one, the defendant possessed the billy club, and, number two, the defendant knew that he possessed the billy club and, number three, the defendant knew that the object could be used as a weapon."
The written instruction provided to the jury read: "The defendant is charged in Count Three of the Information with unlawfully possessing a weapon, specifically a "Billy Club". [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed a Billy Club; [¶] 2. The defendant knew that he possessed the Billy Club; [¶] AND [¶] 3. The defendant knew that the object could be used as a weapon."
Truong neither objected to this instruction nor requested that the trial court provide additional instructions on the issue of possession. Truong's attorney made only a general objection to the use of the new Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM instructions, as opposed to the CALJIC jury instructions. Although defense counsel raised specific concerns regarding two other proposed instructions, he did not raise any concern about the proposed instruction concerning possession of an illegal weapon. By failing to give the trial court the opportunity to address the issue he now raises, Truong forfeited this claim of instructional error. (See People v. Dunkle (2005) 36 Cal.4th 861, 895-897.)
Even if Truong had not forfeited this claim, however, the claim fails on the merits. Putting aside the question whether the court had a sua sponte duty to provide the jury with a definition of "possession, " and assuming there was error, any such error was harmless under the prejudice standard of People v. Watson (1956) 46 Cal.2d 818, 835-836, since it is not reasonably probable that a result more favorable to Truong would have been reached in the absence of the presumed error.
It is unlikely that the court had a sua sponte duty to so instruct in these circumstances. "When a word or phrase ' "is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request." ' [Citations.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning." (People v. Estrada (1995) 11 Cal.4th 568, 574-575 (italics in original).) Truong has offered nothing to suggest that the word "possession" as used in the statute has a definition that differs from its common, nonlegal meaning in any significant way.
It is likely that the reason defense counsel did not object to the lack of additional instruction on the meaning of "possession" is because possession of the billy club was never really in question at trial. The defense did not dispute that Truong drove the car in which the billy club was found, or that he was the only person who had control over the car and its contents at the time he was stopped. During closing argument, Truong's counsel stated that Truong "[wa]s driving that maroon vehicle that belongs to the lady that has the same last name as him" when he was stopped by the police. Truong's counsel never argued that Truong did not possess the billy club or that the prosecution had failed to establish that he possessed the billy club. Rather, the only question the attorneys addressed with respect to the billy club was whether Truong knew that the billy club was in the trunk of the car, i.e., whether he knew that he had possession of the billy club.
Truong did not present any witnesses or evidence. During closing argument, Truong's attorney addressed every charge against Truong except the charge of unlawful possession of a weapon. Counsel did not discuss any of the elements of the crime, nor did he discuss the evidence or lack thereof with regard to count 3. Truong's attorney did not even ask for a not guilty verdict on count 3 when completing his closing statement: "So we are going to be asking you, after you consider all of the evidence in this case, to come back with a not guilty verdict as to counts 1, 2, 4 and 5. Thank you."
By citing People v. Speaks (1981) 120 Cal.App.3d 36, Truong implicitly acknowledges that the relevant issue in a situation where, as here, the object in question is found in a car that the defendant was driving, is not really possession, but rather, knowing possession. The appellate court in Speaks concluded that the trial court erred in failing to instruct the jury that proof of the defendant's ownership and control of the vehicle, and access to the place where the illegal items were found, was insufficient for conviction without proof that he had knowledge of the presence of the illegal items. (Speaks, supra, at p. 39.) In this case, the trial court properly instructed the jury that Truong could not be convicted without a finding that Truong knew he possessed the billy club.
The additional instructions Truong claims the court should have given would have served only to ensure a conclusion that Truong possessed the billy club. Truong argues that the jury should have been instructed with additional language from either CALCRIM No. 2500 or language from CALJIC No. 12.40. The relevant CALCRIM No. 2500 language provides: "[A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/[or] the right to control it), either personally or through another person.]" The relevant language from CALJIC No. 12.40 provides:
"[There are two kinds of possession: actual possession and constructive possession. [¶] 'Actual possession' requires that a person knowingly exercise direct physical control over a thing. [¶] 'Constructive possession' does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [¶] One person may have possession alone, or two or more persons together may share actual or constructive possession.]" (CALJIC No. 12.40 [brackets in original], italics added.)
Given the facts here — facts Truong did not dispute — the jury would have reached the same verdict even if the court had given the jury either of these instructions. If anything, these definitions increase the scope of the concept of "possession" beyond a juror's common understanding of the term by introducing the concept of "constructive possession." Additionally, the jury was instructed that possession had to be knowing. We therefore conclude that there is no reasonable probability that the jury's verdict would have been different if the trial court had given either of the proposed instructions on the issue of possession.
B. Truong's challenges to his sentence
1. Additional background
The trial court sentenced Truong to an aggregate term of four years. The court imposed the upper term of three years for Truong's conviction for possession of an illegal weapon, and added a one-year enhancement pursuant to section 667.5, subdivision (b), for Truong's prison prior. In imposing sentence, the trial court stated,
"In terms of aggravating versus mitigating circumstances, the court can find no circumstances in mitigation in terms of Mr. Truong's background or him as an individual. His attitude towards the probation department indicated he had completely no remorse for his action and no care whatsoever about the offense for which he stood convicted. [¶] I have considered in aggravation the fact that he has a long criminal history dating back to 1997 involving firearms, guns, drugs. He's been tried on probation several times and has completely failed. He was committed to prison just in June of 2002, and that was for possession for sale. And it seems to me that Mr. Truong is on a pathway of just committing crime after crime and has no remorse whatsoever. [¶] So the circumstances in aggravation clearly outweigh those in mitigation such that the court feels it's appropriate to deviate from the presumptive middle term in this case, and I am going to commit Mr. Truong to state prison for the upper term of three years on count 3 plus an additional year to run consecutive for his prior—his prison prior, which the court found true beyond a reasonable doubt, for a term of four years in state prison."
On appeal, Truong contends that the trial court erred by making dual use of his prison prior for purposes of imposing both a one-year enhancement and the upper term. Truong also contends that the trial court erred in sentencing him to the upper term for his conviction for possession of an illegal weapon because at least four of the five factors on which the court relied to impose the upper term were neither proved to a jury nor admitted by Truong.
2. The trial court did not make dual use of Truong's prison prior
Truong contends that the trial court improperly used his prior prison term as both the basis for a sentencing enhancement under section 667.5, subdivision (b) and as an aggravating factor justifying imposition of the upper term. Because Truong failed to object to the dual use of a fact in the trial court, he has forfeited this argument. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) Even on the merits, however, the argument fails.
Truong insists that the trial court used the fact of Truong's "prior prison term" for dual purposes. It is true that the basis for the court's imposition of the section 667.5, subdivision (b) enhancement was that Truong had served a prior prison term. The court imposed "an additional year to run consecutive" on the basis of "his prison prior, which the court found true beyond a reasonable doubt."
However, the factor the court used to support the upper term sentence is different from the mere fact that Truong had served a prior prison term. The court listed the factors in aggravation as "the fact that he has a long criminal history dating back to 1997 involving firearms, guns, drugs. He's been tried on probation several times and has completely failed. He was committed to prison just in June of 2002, and that was for possession for sale. And it seems to me that Mr. Truong is on a pathway of just committing crime after crime and has no remorse whatsoever." Although the court referred to the fact that Truong had been committed to prison, the court's statement makes clear that the court was considering how soon after having been released from prison Truong committed the current offenses. The factor the court used to impose the upper term related to the timing between the events, not simply the fact that Truong had served a prior prison term. The factor the court used to impose the upper term was therefore not the same factor as the one the court used to impose a one-year enhancement.
3. The trial court did not err in imposing the upper term
Truong challenges his sentence on the basis that the trial court committed Blakely error in sentencing him to the upper term. Truong contends that in sentencing him to a term above the presumptive middle term, the trial court relied on facts—other than the fact of a prior conviction—that were neither found by the jury nor admitted by him, and that the court thus violated his Sixth Amendment right to a jury trial.
After Truong appealed from his judgment of conviction, the United States Supreme Court issued its opinion in Cunningham v. California, supra, 549 U.S.____, 127 S.Ct. 856, to address the constitutionality of California's determinate sentencing law (DSL) as interpreted by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I), certiorari granted, judgment vacated, and cause remanded sub nom. Black v. California (2007) _____ U.S.____, 127 S.Ct. 1210. In Black I, the Supreme Court determined that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Black I, supra, 35 Cal.4th at p. 1244.) In Cunningham, the United States Supreme Court rejected the conclusion in Black I, and held that the imposition of an upper term sentence under California's determinate sentencing law based on neither a prior conviction nor facts found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United States Constitution:
"California's determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term'sentence. The facts so found are neither inherent in the jury's verdict nor embraced by the defendant's plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does." (Cunningham, supra, 127 S.Ct. at p. 860.)
The Cunningham court reasoned:
"As this Court's decisions instruct, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) [Apprendi]; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556 (2002) [Ring]; Blakely [, supra, ] 542 U.S. 296; 124 S.Ct. 2531; United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) [Booker]. '[T]he relevant "statutory maximum, "'this Court has clarified, 'is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.' Blakely, 542 U.S., at 303-304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham, supra, 127 S.Ct. at p. 860.)
The Cunningham court reversed the defendant's upper term sentence because "the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial." (Cunningham, supra, 127 S.Ct. at p. 860.) The United States Supreme Court vacated the Black I decision and remanded the matter to the California Supreme Court. That court recently issued a new opinion in the Black case in light of Cunningham. (People v. Black (July 19, 2007, No. S126182) __ Cal.4th __, 2007 LEXIS 7604 (Black II).) In a related case, People v. Sandoval (July 19, 2007, No. S148917) __Cal.4th__, 2007 LEXIS 7606 (Sandoval), the California Supreme Court addressed additional issues raised by the Cunningham decision. We consider the parties' arguments in light of this most recent precedent.
In response to Cunningham, the Legislature passed an amendment to the DSL, which the Governor signed into law on March 30, 2007. (See § 1170, as amended by Stats. 2007, ch. 3, § 2.) The amendment to section 1170 gives trial courts full discretion to impose the lower, middle, or upper term sentence, effectively increasing the "statutory maximum" from the middle term to the upper term. (Compare § 1170, subd. (b), as amended by Stats. 2007, ch. 3, § 2 ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court"] with former § 1170, subd. (b) ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime"].)
a. Truong has not forfeited this challenge
As an initial matter, we address the People's assertion that Truong forfeited his claim by failing to "object under Apprendi, Blakely, or the right to a jury trial" in the trial court. Although Truong's counsel did not raise a Blakely objection at sentencing, we conclude that Truong is not precluded from asserting this argument on appeal. At the time of Truong's sentencing, the California Supreme Court had analyzed relevant United States Supreme Court precedent and concluded that the imposition of an upper term sentence under California law was constitutional. (See Black I, supra, 35 Cal.4th at pp. 1244, 1254, 1261.) In light of Black I, any objection Truong might have raised at sentencing based on Blakely, Apprendi, or the United States Constitution would have been futile. We conclude, therefore, that Truong's challenge to the upper term sentence is cognizable on appeal despite his failure to raise the issue in the trial court. (See Sandoval, supra, 2007 LEXIS 7606, at pp. 15-16, fn. 4 [defendant did not forfeit Sixth Amendment challenge by failing to object at sentencing that occurred after Black I].)
b. The trial court did not err in relying on aggravating circumstances not found by the jury to impose the upper term
i. A single permissible aggravating circumstance renders the upper term the "statutory maximum"
The trial court relied on five aggravating factors to impose the upper term, none of which were found true by a jury or admitted by Truong: (1) Truong's "long criminal history dating back to 1997 involving firearms, guns, drugs"; (2) his probation failures; (3) the fact that he had been committed to prison "just in June of 2002"; (4) the court's belief that he is "on a pathway of committing crime after crime"; and (5) the court's belief that Truong lacked remorse for his crime.
The People argue that although the trial court may have utilized some impermissible factors in imposing the upper term (i.e., that Truong is "on a pathway" of crime and that he lacks remorse), the trial court nevertheless did not violate Truong's jury trial right because the court relied on at least one permissible factor in imposing the upper term. The California Supreme Court determined in Black II that the existence of "a single aggravating circumstance" that has been established in a manner consistent with the requirements of the Sixth Amendment renders a defendant eligible for the upper term, thus making "it lawful for the trial court to impose an upper term sentence." (Black II, supra, 2007 LEXIS 7604, at p. 27.) Because the upper term is the "statutory maximum" where at least one permissible aggravating factor is present, it is of no consequence that the trial court may have relied on additional impermissible aggravating factors in selecting the upper term sentence. According to the Black II court, "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 [v. New Jersey (2000) 530 U.S. 466 (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 II, supra, 2007 LEXIS 7604, at p. 19 (italics in original).)
ii. The trial court relied on at least one aggravating circumstance that was established in accordance with the requirements of the Sixth Amendment
In this case, we conclude that Truong's right to a jury trial was not violated by the trial court's imposition of the upper term because the trial court relied on at least one, and possibly two, aggravating circumstances that rendered him "eligible for the upper term sentence." (Black II, supra, 2007 LEXIS 7604, at pp. 3, 33.) Specifically, the trial court cited Truong's "long criminal history" and his recent commitment to prison, in imposing the upper term. As Black II clarifies, a court may use factors related to a "defendant's criminal history" to impose the upper term despite the lack of jury findings on those matters.
The Black II court concluded that factors relating to a defendant's recidivism need not be found by a jury nor admitted by the defendant in order to be established in accordance with Apprendi because these factors fall within the scope of the exception identified in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres). (Black II, supra, 2007 LEXIS 7604, at pp. 33-35.) Under Almendarez-Torres, a court does not violate a defendant's Sixth Amendment jury trial right by imposing a sentence that exceeds the statutory maximum on the basis of a defendant's prior conviction. (Blakely, supra, 542 U.S. at p. 301, citing Apprendi, supra, 530, U.S. at p. 490.)
Asserting that the United States Supreme Court "consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction, " the Black II court concluded that the Almendarez-Torres exception 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 II, supra, 2007 LEXIS 7604, at p. 37. The court reasoned:
"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 II, supra, 2007 LEXIS 7604, at p. 39.)
The determination that Truong has a "long criminal history, " requires the same consideration as that required to assess whether a defendant's prior convictions are numerous or of increasing seriousness. Additionally, the determination that Truong was recently committed to prison can be determined by reference to the date on which he was committed to prison for a prior conviction. Because these two aggravating circumstances "independently satisfy Sixth Amendment requirements" pursuant to the Black II court's interpretation of the Almendarez-Torres exception, Truong was eligible for the upper term. (See Black II, supra, 2007 LEXIS 7604, at p. 29 ["[T]he 'statutory maximum'sentence to which defendant was exposed by the jury's verdict was the upper term, because at least one aggravating circumstance. . . was established by means that satisfy the requirements of the Sixth Amendment."].) The trial court was thus free to select the upper term without violating Truong's right to jury trial.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: NARES, Acting P. J., HALLER, J