Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BF108656 of Kern County. Gary T. Friedman, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Javier Villarreal (appellant) was acquitted of burglary (Pen. Code, § 460, subd. (a)) in count 2, but found guilty of aggravated mayhem (§ 205) in count 3, mayhem (§ 203) in count 4, and assault with a deadly weapon (§ 245, subd. (a)(1)) in count 5. As to counts 3 and 4, the jury found true the allegations that appellant used a deadly weapon within the meaning of section 12022, subdivision (b)(1). The jury deadlocked on a charge of attempted murder (§§ 664, 187, subd. (a)) in count 1, and the court declared a mistrial as to that count. In a bifurcated proceeding, the trial court found true that appellant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant on count 3 to state prison for a term of life with the possibility of parole, plus one year for the deadly weapon enhancement and five years for the prior serious felony conviction. The court imposed upper term, enhanced sentences on counts 4 and 5 but ordered them stayed pursuant to section 654.
On appeal, we agree with appellant’s contention that his conviction for simple mayhem in count 4 must be reversed. We disagree with his claims that the prosecutor committed prejudicial misconduct during closing argument and that imposition of the upper term sentence on count 5 violated Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).
FACTS
Ramona Macias and appellant had a long-term relationship during which they had two children together. In approximately 2002, Macias ended the relationship due to appellant’s jealousy. Toward the end of their relationship and afterwards, appellant watched and followed Macias, even at times sitting on the roof of her house.
Macias was rather equivocal about when her relationship with appellant ended, and during rebuttal, stated it may have been between six to eight months before the incident in question, which would be in early 2004.
In July of 2004, Macias began dating Frank Ortiz. On the morning of August 29, 2004, Ortiz and Macias were together in her home when they became aware that appellant was outside the house, yelling for Macias. Appellant wanted Macias to come outside to talk to him. When she told him “no” and asked him to leave, he kicked in a locked door, came into the house, and sat down at the kitchen table.
Macias and appellant argued. Appellant repeatedly stated that he “came for what belongs to [me],” and asked Macias if she was with Ortiz. Macias told appellant that she was, and ordered him to leave. As they continued to argue, appellant moved toward Macias with clenched fists. Ortiz moved between the two of them and ordered appellant to leave. Macias then stepped between appellant and Ortiz and told Ortiz to go to another room. As Ortiz walked away, he heard Macias scream.
Just as Ortiz turned around, appellant hit him in the head with a 20- to 25-inch machete. Blood streamed down Ortiz’s face. To that point, neither Ortiz nor Macias had seen appellant with a weapon. Ortiz raised his hands in self-defense, but appellant continued to strike him with the machete. Ortiz backed away from appellant and, as he did so, he threw things at appellant, including, possibly, a bread knife. But Ortiz did not threaten appellant with the bread knife or any other weapon.
Ortiz tried to get out the front door but fell in the process. When he tried to get up, he noticed that his right hand was dangling. He grabbed onto a fish tank, which fell, and appellant then broke it with the machete. Appellant unlocked the door and left, stating he would be “back to finish what [he] came … for.”
Ortiz suffered numerous injuries. He had lacerations on his left forearm and on his head. He had a severe wound to his right wrist, which severed the joint and a number of tendons and required surgery. That injury left Ortiz with large scars on his right arm, and the loss of the use of three fingers on that hand. He also had numbness on his head as a result of the machete wound.
Ortiz acknowledged that he had prior misdemeanor convictions for assault with a deadly weapon, spousal abuse, and making a criminal threat.
Macias testified that she had seen appellant with a machete on a previous occasion but could not recall when that had occurred. At that time, appellant had carried the machete tucked into his pants.
Officer Connie Martin, who responded to the scene, found Ortiz in a large pool of blood. Macias told the officer that appellant had broken into her home and that appellant and Ortiz had been arguing when she tried to get between them. When she was pushed out of the way, appellant struck Ortiz with the machete. One of Macias’s children told the officer she heard arguing and saw appellant swinging something she thought was a knife.
Both Detective William Darbee and Detective Scott Miller, who investigated the crime scene, testified that the door to the home looked as if it had been forced open.
An officer who had known appellant both personally and professionally for 20 to 25 years testified that he had been told by a confidential informant that when appellant was younger, he had beaten and robbed a 12-year-old boy in a park. He also testified that approximately two years prior to trial in this case, appellant had hidden in bushes and then fought with officers trying to detain him. The officer also heard other officers say that appellant had resisted arrest on four or five occasions.
Defense
Appellant testified in his own defense and claimed he had lived with Macias until the middle of June of 2004. Appellant testified that he was a handyman and was learning to trim palm trees with a machete.
On the date in question, appellant climbed the fence at Macias’s house and entered the back yard. He saw Macias through the window and wanted to talk to her, but appellant could not hear her response. He knocked several times on the side door and got no response, but then Ortiz told him he would let him in the front. Instead, appellant went to the side door, which he claimed was unlocked, and entered.
Once inside, appellant asked Macias if she was with Ortiz and she stated, “you know that I am.” Appellant sat down at the kitchen table and told Macias that he came for what belonged to him. He and Macias talked, but he was not certain if it escalated into an argument.
Appellant testified that he became angry because Ortiz was “acting like … he wanted to do something to me .…” He described Ortiz as “making gestures towards me,” and “making a scene like I wasn’t welcome there.” Appellant ordered Ortiz to leave the house and, when he refused, appellant stood up and walked toward him. Appellant went to punch Ortiz, but Ortiz grabbed a bread knife from the countertop and tried to stab him. Appellant testified that he needed to protect himself and reached underneath the couch where he had stashed a machete in the furniture lining. Appellant claimed he left the machete underneath the couch when he lived there.
Appellant swung the machete at Ortiz, who was still holding the bread knife, and, as Ortiz raised his arms in defense, appellant struck him three or four times, including on his forehead and arms. According to appellant, Ortiz was trying to kill him and appellant repeatedly hit him with the machete to keep Ortiz from stabbing him. Eventually, Ortiz fell and appellant hit him again with the machete.
Appellant then ran from the residence, panicked, and lived “on the streets” for a year and a half. He did not call the police. Appellant testified that he sustained a cut on his right ring finger from the bread knife, but he did not go anywhere to have it treated. He testified that he was afraid of Ortiz and some of Ortiz’s family members. Appellant acknowledged a prior felony conviction for residential burglary.
The defense presented five witnesses who testified to Ortiz’s character for violence.
A forensic scientist testified that the crime scene was processed poorly and that photographs of the bread knife, which was not collected and preserved for fingerprints or DNA testing, suggested there were bloodstains on the blade, but he was not certain.
Rebuttal Evidence
Macias testified that she often moved the couch and checked it for such things as change and the remote control, and had there been a machete stashed underneath it, she would have seen it. During the incident, Macias never saw appellant go near the couch.
DISCUSSION
1. Was appellant properly convicted of both aggravated mayhem and simple mayhem?
Appellant was convicted of aggravated mayhem in count 3 and simple mayhem in count 4. Appellant argues that simple mayhem is necessarily included within aggravated mayhem, and he cannot be convicted of both offenses. He thus asserts that his conviction of simple mayhem must be reversed. We agree.
To put appellant’s argument in context, we first discuss some procedural background. The information charged appellant with two separate mayhem allegations: aggravated mayhem in count 3 and simple mayhem in count 4. In discussing jury instructions, defense counsel suggested and the trial court agreed that aggravated mayhem was an alternate count to the lesser count of simple mayhem. It was agreed that CALCRIM No. 3516, which instructs on alternative charges for one event, should be given, and that CALCRIM No. 3515, which instructs on multiple counts for separate offenses, did not apply. Yet, later, the court said that the jury would be instructed with CALCRIM No. 3515 that “[e]ach of the counts charged in this case is a separate crime,” and that each count must be considered separately. Although defense counsel argued that counts 3 and 4 were exceptions to CALCRIM No. 3515, the trial court assured defense counsel that, if appellant were convicted of both, “you strike the simple mayhem.” Subsequently, separate instructions were given for both counts 3 and 4, including instructions that battery with serious bodily injury and simple battery were both lesser included offenses of both counts. CALCRIM No. 3516 was not given. Appellant was convicted of both aggravated mayhem and simple mayhem. At sentencing, no mention was made that the convictions were to be in the alternate. The trial court did not strike the simple mayhem conviction but, instead, imposed and stayed the sentence pursuant to section 654.
A pleading may charge different statements of the same offense, and the defendant may be convicted “of any number of the offenses charged.” (§ 954.) But when the greater offense cannot be committed without necessarily committing the lesser, and the jury finds the defendant guilty of both, the conviction of the lesser offense must be reversed. (People v. Ortega (1998) 19 Cal.4th 686, 692, disapproved on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, 1231.) In People v. Reed, our Supreme Court held that for purposes of avoiding improper multiple convictions, the statutory elements test is to be used to determine whether an offense is necessarily included in another. (People v. Reed, supra, at p. 1231.)
Although the question whether simple mayhem is a necessarily included offense in aggravated mayhem appears to be one of first impression in California, several cases have assumed it to be so. In People v. Park (2003) 112 Cal.App.4th 61, 65-66, the trial court instructed the jury that simple mayhem was necessarily included in aggravated mayhem, although the appropriateness of that instruction was not an issue on appeal. In People v. Pre (2004) 117 Cal.App.4th 413, 418, the court noted that the defendant was convicted of “simple mayhem (as a lesser included offense of aggravated mayhem),” but did not otherwise address the issue. And in People v. Quintero (2006) 135 Cal.App.4th 1152, 1167, the court described simple mayhem as the lesser included offense of aggravated mayhem in the context of whether an imperfect self-defense instruction was required.
Under section 205, a person commits aggravated mayhem “when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body.” (§ 205.) Simple mayhem is defined as follows: “Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.” (§ 203.) The information alleged aggravated mayhem in count 3, using language that tracked section 205, and alleged simple mayhem in count 4, using language that tracked section 203.
Under the statutory definitions, both aggravated mayhem and simple mayhem require causing mayhem “unlawfully.” (§§ 203, 205.) But whereas simple mayhem is a general intent crime, aggravated mayhem requires the specific intent to cause the maiming injury. (People v. Ferrell (1990) 218 Cal.App.3d 828, 833.)
Simple mayhem requires removing, disabling, disfiguring, or rendering useless a “member of [the] body” or cutting the tongue, putting out an eye, or slitting the nose, ear, or lip of another. (§ 203.) Aggravated mayhem requires removing, disabling, or disfiguring “a limb, organ, or member of [the] body.” (§ 205.) “Member” is defined in the American Heritage Dictionary (3d college ed. 2000) page 849 as being: “A part or an organ of a human or animal body … [a] limb, such as an arm or a leg.” Thus, while the language of the statutes differs in this respect, the import is the same, and we conclude that aggravated mayhem cannot be committed without also committing simple mayhem.
But even when one offense is necessarily included within another, multiple convictions are permissible when based on different conduct. (See People v. Ortega, supra, 19 Cal.4th at pp. 699-700.) Here, the People argue that the two mayhem convictions were appropriate because the case involved separate acts of violence. According to respondent, “the acts of striking Ortiz with the machete, and then, after his momentary escape, slashing him again, support appellant’s two mayhem convictions.”
In determining whether the offenses were based on different conduct, we look to whether the offenses were committed during an indivisible transaction. (People v. Ortega, supra, 19 Cal.4th at pp. 699-700 [holding that multiple robbery or theft convictions could not be based on stealing multiple items from a single victim during an indivisible transaction].) Here, despite respondent’s claim to the contrary, the prosecutor did not argue at trial that the evidence showed separate conduct. Although the prosecutor argued that on August 29, 2004, appellant committed the separate offenses of “attempt[ed] murder, burglary, aggravated mayhem, mayhem, and assault with a deadly weapon,” he did not spell out which separate acts constituted which offense, other than that of the burglary. The prosecutor’s argument was that appellant hit Ortiz with the machete “over and over and over again,” and he described appellant as first “going for his head,” as evidenced by the fact that Ortiz suffered defense wounds to his arms. The prosecutor stated that appellant then hit Ortiz repeatedly, trying to get to his head and, in the process, hit him at least five times. But the prosecutor did not argue that the evidence showed separate conduct; rather, the prosecutor argued the same conduct to establish all of the charged offenses, except burglary.
There is nothing in the record to suggest that the verdict in count 3 was based on different facts from the verdict in count 4. Thus, the conviction of the necessarily included lesser offense of simple mayhem must be reversed.
2. Did the prosecutor commit prejudicial misconduct during closing argument?
Appellant contends the prosecutor committed misconduct on numerous occasions during closing argument, which resulted in an infringement of his federally guaranteed due process rights. Appellant claims that reversal of his convictions is required because the prosecutor “repeatedly argued to the jury a version of facts which were [sic] not in evidence, and impermissibly shifted the burden to the defense by arguing that [appellant] had failed to call critical witnesses.” A review of the record reveals no prejudicial misconduct on the part of the prosecutor.
Appellant points specifically to the following instances during closing argument:
(1) The prosecutor referred to the character witnesses presented by the defense concerning Ortiz and attempted to minimize their effect by stating that Ortiz used to be married to one of them, and that anyone who had been through a divorce or custody dispute knows “[t]hey can be bitter, nasty things.” Defense counsel objected, stating that there was no evidence presented “with regards to any marriage.” The trial court informed the jury that counsel was allowed to argue what the evidence was or could reasonably be inferred, and that the jury was free to request a readback of certain testimony if it chose to do so. The prosecutor then continued argument, stating “I don’t know if they were married or not. They had some kids together. They had a custody dispute.”
(2) The prosecutor suggested that appellant kicked in the front door of the house. Defense counsel objected on grounds of facts not in evidence. The trial court stated, “You recall, ladies and gentlemen, what the evidence is and if there’s some question about it, I’ve explained to you how you can have a read-back if you need it.”
(3) The prosecutor argued that appellant did not possess the machete for work purposes but only for use as a weapon. The prosecutor supported his theory by stating:
“First of all, I think the reason I got off on to this tangent is we were talking about the length to which the defense has gone to call these witnesses. They call all these character witnesses, the ex-girlfriend, whatever, spouse, whatever, her mother, her brother, and her friend to testify to these things. [¶] Who didn’t they call? Who didn’t they call? [¶] An employer? How about that. How about a guy to hop up on that stand and say yeah, I worked with [appellant] —”
Defense counsel objected, stating that the prosecutor was improperly shifting the burden of proof. The court stated, “There is no burden on the part of [appellant], nor his attorney, to do one solitary thing. The only burden’s on the People.” The prosecutor then continued, stating:
“Who didn’t he call? [¶] He didn’t call a person to sit up there and say yeah, boy, I worked with [appellant] and he used to trim trees with me that required the use of a machete or trim palm trees or whatever.”
Defense counsel again objected, stating the argument was improper and amounted to prosecutorial misconduct. The trial court sustained the objection, but stated “I’m not sustaining on prosecutorial misconduct,” only on the fact that there was no burden on the part of the defense. The prosecutor continued, stating he did not mean to suggest “for a second that the burden rests on anybody [but] myself. I have that burden. We have that burden, the People, and I believe we’ve met it. [¶] And I also believe there’s a reason that you didn’t hear from an employer, because he doesn’t have that job. That job doesn’t exist.… He had that [machete] as a weapon.”
(4) The prosecutor continued the argument that appellant owned the machete as a weapon and not as a work tool by stating that Macias had testified that she had thrown out appellant’s prior machete. The prosecutor asked, “Did she throw it out because she didn’t want him to work, she didn’t want him to bring home the paycheck? No. She threw it out because she was scared of him .…” Defense counsel objected as a misstatement of the testimony. The trial court sustained the objection.
(5) During rebuttal, the prosecutor, referring to the crime scene photographs, stated that Ortiz tried to get appellant to stop hitting him with the machete by throwing “things like this coffee pot up there, things like this knife right there, things like this, who knows, chicken baster I guess is what … that’s called ….” Defense counsel objected, stating that the argument was a misstatement of the facts because Ortiz had testified that he only remembered throwing a coffee pot. The trial court reiterated its earlier statement that the jury could request a readback of testimony if it so wished. The prosecutor then apologized, stating there was no testimony that it was a chicken baster that had been thrown and that that was “for you to decide what that is.”
(6) The prosecutor argued, also during rebuttal, that when Ortiz fell off the couch and “[appellant] is standing over him, the child comes out of this door and [appellant] leaves.” Defense counsel objected, stating there was no evidence for this fact. The trial court repeated that it was for the jury to consider the evidence and “what can be reasonably inferred from the evidence,” and that the jury could request a readback of testimony if desired.
“‘Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” (People v. Haskett (1982) 30 Cal.3d 841, 866, quoting People v. Strickland (1974) 11 Cal.3d 946, 955.) A prosecutor has a duty to prosecute vigorously and, “‘while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’” (People v. Pitts (1990) 223 Cal.App.3d 606, 691, quoting Berger v. United States (1935) 295 U.S. 78, 88.)
But, “‘a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’” (People v. Clair (1992) 2 Cal.4th 629, 662, italics added, quoting People v. Benson (1990) 52 Cal.3d 754, 794.) The reason for this rule, of course, is that “the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.” (People v. Simon (1927) 80 Cal.App. 675, 679.) The rule is inapplicable where the harm could not have been cured. (People v. Clair, supra, at p. 662.) It is an exceptional case, however, where the effect of the improper subject matter cannot be removed by a court’s admonition. (People v. Pitts, supra, 223 Cal.App.3d at p. 692.)
Here, defense counsel objected to each of the above referenced statements, but did so only once on the basis of prosecutorial misconduct. The bulk of appellant’s claims are therefore not reviewable on appeal. (People v. Mayfield (1997) 14 Cal.4th 668, 753.)
In any event, even if appellant’s waivers are ignored, the claims of misconduct are rejected on the merits. As we shall explain, the challenged remarks, in context, did not constitute misconduct and, even if improper, did not prejudice appellant. (People v. Lucas (1995) 12 Cal.4th 415, 475 [prosecutor’s statements must be viewed in light of the argument as a whole].) We will not reverse a criminal conviction for prosecutorial misconduct unless the defendant was prejudiced. (People v. Warren (1988) 45 Cal.3d 471, 480.)
Appellant contends that the prosecutor misstated the evidence on several occasions, namely that he referred to a witness as having been married to Ortiz (No. 1), that appellant kicked in the front door (No. 2), that Macias threw out appellant’s first machete because she was afraid of him (No. 4), that Ortiz threw a knife and chicken baster at appellant (No. 5), and that appellant left the house after a child saw him (No. 6). Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. (People v. Hill (1998) 17 Cal.4th 800, 823; People v. Avena (1996) 13 Cal.4th 394, 420-421.) The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. (People v. Hill, supra, at p. 819.)
We find appellant’s assignments of error in this category lack merit. Four of the instances (Nos. 1, 2, 5, & 6) could be characterized as reasonable inferences that could be drawn from the evidence presented. And, in any event, no prejudice occurred because the trial court informed the jury each time that it could request a readback of testimony if it so requested.
As to the instance in which the prosecutor argued that Macias threw out appellant’s first machete because she was afraid of him (No. 4), the trial court sustained defense counsel’s objection to this as a misstatement of testimony. A party is generally not prejudiced by a question to which an objection has been sustained. (People v. Mayfield, supra, 14 Cal.4th at p. 755; People v. Johnson (2003) 109 Cal.App.4th 1230, 1236.)
Appellant also claims that the prosecutor misstated the law as to his burden of proof when the prosecutor questioned why appellant had not presented witnesses to the fact that he used his machete for work (No. 4). It is improper for the prosecutor to misstate the law generally, and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. (People v. Marshall (1996) 13 Cal.4th 799, 831; People v. Hill, supra, 17 Cal.4th at pp. 829-830.) But it is permissible for a prosecutor to comment on the defendant’s failure to introduce material evidence or call logical witnesses. (People v. Morris (1988) 46 Cal.3d 1, 35, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5-6.) “A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand, an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)
In this instance, the prosecutor logically followed up on the evidence presented by appellant that he owned the machete for work purposes by questioning appellant’s failure to call available witnesses who could provide favorable testimony. We do not find that the prosecutor impermissibly shifted the burden of proof. Furthermore, in response to defense counsel’s objection, the trial court reiterated to the jury the People’s burden of proof, stating, “There is no burden on the part of [appellant], nor his attorney, to do one solitary thing. The only burden’s on the People.” When defense counsel repeated his objection, the trial court sustained defense counsel’s objection, and the prosecutor acknowledged that the People had the burden and he did not mean to intimate otherwise.
We do not find that appellant was prejudiced by any of the prosecutor’s comments. The jury properly was instructed that the statements of counsel were not evidence (CALCRIM No. 222), that it was the duty of the jury to determine the facts based on all the evidence (CALCRIM No. 223), that the defendant has a presumption of innocence and the People have the burden of proof (CALCRIM Nos. 103, 220), and the fact that neither side was required to call all witnesses who may have had information about the case or to produce all physical evidence that might be relevant (CALCRIM No. 300). It is presumed the jury understood and followed the court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Finally, appellant argues that the cumulative impact of the prosecutor’s misconduct deprived him of a fair trial. We disagree. We have either rejected appellant’s claims of error or found any errors, assumed or not, to be not prejudicial on an individual basis. Viewing the errors as a whole, we conclude that the errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
3. Did the upper term sentences imposed violate Cunningham?
The trial court imposed upper term sentences in counts 4 and 5. Relying on Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the trial court violated his Sixth Amendment right to trial by jury by imposing the upper term based on factors not admitted by appellant or found true by the jury beyond a reasonable doubt. Because we reverse the sentence in count 4, we address the issue as to count 5 and disagree.
The respondent argues that appellant forfeited his claim of error arising under Cunningham because he failed to raise it at sentencing, which occurred in this case after Blakely and Apprendi were decided. But, at the time appellant was sentenced, People v. Black (2005) 35 Cal.4th 1238 (Black I), which held Blakely was inapplicable to the selection of the upper term, was the prevailing law. Thus, appellant’s objection under Blakely to the upper term would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) Accordingly, appellant did not forfeit the claim he raises under Cunningham, and we address the merits of his contention.
In Cunningham, the Supreme Court reaffirmed Apprendi, Blakely, and United States v. Booker (2005) 543 U.S. 220, but overruled Black I and held California’s determinate sentencing law violates a defendant’s constitutional right to a jury trial to the extent it authorizes the trial judge to find facts that expose a defendant to an upper term sentence by a preponderance of the evidence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at pp. 863-864].)
The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224.)
At the sentencing hearing, the trial court reviewed the probation report and identified the following aggravating circumstances: “One, [appellant’s] prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous; two, [appellant] has served a prior prison term and a prior commitment to the California Youth Authority; [and] third, [appellant’s] prior performance on probation was unsatisfactory due to reoffending and a failure to follow the terms and conditions thereof .…” (See Cal. Rules of Court, rule 4.421.) The court found a single factor in mitigation: “[Appellant’s] prior performance on California Department of Corrections parole was satisfactory in that [appellant] successfully discharged, without return to custody, his parole.” (See rule 4.423.) The court found the aggravating factors “clearly outweigh the single factor in mitigation.”
All further rule references are to the California Rules of Court.
We find the trial court relied, and properly so, on appellant’s prior criminal history in imposing the upper term. Appellant’s criminal history dates back to 1983. The probation report lists juvenile adjudications for grand theft, battery, and disorderly conduct. As an adult, appellant had convictions for numerous Vehicle Code violations, petty theft, possession of a controlled substance, and being under the influence of a controlled substance. The court, in summing up appellant’s prior criminal history, found that between 1993 and 2001, appellant had six violations of probation.
Appellant also had a prior conviction for first degree burglary, but since it was used as a serious felony enhancement, it will not be considered a prior conviction for aggravating circumstances. (Rule 4.420(c).)
Prior to the decision in Cunningham, the prior conviction exception to Apprendi and Blakely was construed broadly by California appellate courts to apply not only to the fact of prior convictions but also to other issues relating to the defendant’s recidivism, including the defendant’s status as a probationer or parolee at the time the current offense was committed and the existence of “numerous” or increasingly serious prior convictions. (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [“courts have held that no jury trial right exists on matters involving the more broadly framed issue of ‘recidivism’”]; People v. McGee (2006) 38 Cal.4th 682, 706-707 [“numerous state and federal court decisions have interpreted the Almendarez-Torres exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendant’s recidivism”].) The reasoning of Thomas and McGee was recently reaffirmed in People v. Black (2007) 41 Cal.4th 799, 819-820 (Black II), by which we, of course, are bound. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant’s prior criminal history was therefore an aggravating circumstance correctly relied upon by the trial court in sentencing appellant to the upper term. And as stated most recently in Black II:
“[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available option does not violate the defendant’s right to jury trial. [¶] … [¶] Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at pp. 812-813.)
In summary, since appellant’s criminal history established an aggravating circumstance “that independently satis[fied] Sixth Amendment requirements and render[ed] him eligible for the upper term,” “he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence .…” (Black II, supra, 41 Cal.4th at p. 820.) In short, there was no federal constitutional error. (Cf. People v. Sandoval, supra, 41 Cal.4th at p. 843 [6th Amend. rights violated by imposition of upper term sentence where no aggravating circumstances cited by trial court fell within Blakely exceptions of fact of prior convictions or facts established by jury’s verdict or admitted by defendant].)
4. Must the prior serious felony term attached to counts 4 and 5 be stricken?
Appellant suffered a single prior serious felony conviction for purposes of the five-year enhancement imposed under section 667, subdivision (a). Although not argued by the parties, we note that a final modification to the sentence is required to correct an unauthorized use of the trial court’s true finding on this allegation.
The court added a separate five-year enhancement to each sentence imposed in counts 3, 4, and 5. It imposed but stayed the enhancement as to counts 4 and 5. Unlike conduct-based enhancements, enhancements based on prior convictions do not attach to individual counts, but are added only once when computing the total sentence. (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 398-401.) Because appellant suffered only one prior conviction under section 667, subdivision (a), the trial court should have imposed only a single five-year enhancement. A trial court acts in excess of its jurisdiction and imposes an unauthorized sentence when it stays rather than strikes an enhancement. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Jones (1992) 8 Cal.App.4th 756.) We order that the section 667, subdivision (a) enhancement attached to counts 4 and 5 be stricken.
DISPOSITION
The conviction for simple mayhem (count 4) is reversed. The five-year enhancement under section 667, subdivision (a) attached to counts 4 and 5 and the one-year enhancement under section 12022, subdivision (b)(1) attached to count 4 must be stricken and the abstract of judgment corrected accordingly and sent to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., CORNELL, J.