Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. Nos. SC122889A, SC124442A, SC126580A, SC136369B
Swager, J.
Following a jury trial in three separate cases which were consolidated for trial, defendant was convicted of two counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)), along with two misdemeanor offenses: unlawful display of evidence of registration to a peace officer (Veh. Code, § 4462.5), and possession of an unlawful smoking device (Health & Saf. Code, § 11364). In another case separately and subsequently tried before a jury he was found guilty of burglary (Pen. Code, § 459), and grand theft (Pen. Code, § 487, subd. (a)). The jury in one proceeding and the trial court in another found that he sustained multiple prior felony convictions within the meaning of sections 1203 and 1170.12, and committed offenses while released on bail (§ 12022.1). In a single sentencing proceeding he was sentenced under the three strikes law to an aggregate term of 39 years and 8 months to life in state prison. Defendant was also ordered to pay multiple restitution fines, parole revocation fines and court security fees (§§ 1202.4, 1202.45, 1465.8.)
He also entered a guilty plea to a misdemeanor charge of driving with a suspended license in violation of Vehicle Code section 14601.1, subdivision (a).
The four cases have all been consolidated on appeal. All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal defendant complains of multiple errors committed during the two trials: evidence of prior convictions was erroneously admitted; instructional errors were made related to the burglary and carrying a concealed dagger charges; he was improperly denied a jury trial or an opportunity to present a defense on one of the prior strike allegations; and the finding of a prior strike conviction is not supported by the evidence. He also claims that sentencing errors occurred: an upper term was imposed in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham); multiple restitution fines were erroneously imposed in the consolidated case; and the order to pay court security fees violated ex post facto proscriptions and section 3. We conclude that no prejudicial errors occurred in either the two trials or in the sentencing of defendant, and affirm the judgment.
As the parties have done, we will arrange our recitation of the facts according to the four separate incidents that comprise the four cases consolidated in this appeal.
Case Number SC122889A
While Deputy Michael Brovelli of the Marin County Sheriff’s Office was on patrol at about 12:30 a.m. on November 22, 2001, he noticed a black Corvette that did not have a license plate lamp. Brovelli detained the Corvette, which was driven by defendant; a woman identified as Danielle Hoff occupied the front passenger seat. After defendant was unable to produce a driver’s license, registration or proof of insurance, Deputy Brovelli conducted a “warrant search” and discovered that his driver’s license was suspended. Defendant was arrested, handcuffed and pat searched. The deputy felt a “hard object” on defendant’s waistband “which was concealed by his shirt.” After lifting the shirt, Deputy Brovelli discovered that the object “was a dirk” inside a sheath.
During a search of the Corvette, Deputy Brovelli discovered a “counterfeit registration tab” affixed to the rear window of the vehicle. A “clear plastic bag with a white crystal-like substance inside of it” that was subsequently identified as methamphetamine was found between the driver’s seat and the center console. A bag seized from the rear seat contained hypodermic needles, a marijuana pipe and some cotton balls. Hoff stated that the bag belonged to her, and she was subsequently arrested for possession of hypodermic syringes.
Defendant was transported to the police station, where he agreed to talk to Deputy Brovelli. When asked about the dirk, defendant said that it “came from Pakistan,” and he carried it “for no particular reason.” He indicated that a friend gave him the “fake registration” about six weeks before, and he knew nothing more about it. Defendant also stated that he “didn’t know anything about any drugs” found in the plastic bag.
Case Number SC124442A
On May 14, 2002, at about 6:00 p.m., as Sergeant Jeff Edwards of the Marin County Sheriff’s Office drove through the intersection of Park Street and San Geronimo Valley Road, he observed defendant working on the engine of a red Corvette. Although the Corvette had a “2002 tab” on the license plate, the registration had expired in 1994. Sergeant Edwards contacted defendant, who stated that he “had just purchased the car a few months ago,” and the “2002 tab was on the vehicle when he had purchased it.” The officer then conducted a consent search of defendant and the Corvette. Edwards observed a Marlboro cigarette box on the front passenger seat; inside it was a plastic baggie that contained a “white, powdery substance.” The officer suspected that the powder was methamphetamine or cocaine, but when asked defendant said “it was battery acid.” Edwards conducted an “NIK field test” which was “presumptive positive” for methamphetamine. Defendant was placed under arrest. When asked about the methamphetamine, defendant said, “What’s there to talk about?”
A subsequent lab test confirmed that the substance was 1.61 grams of methamphetamine.
As he arranged for the red Corvette to be towed, Sergeant Edwards discovered that the VIN on the vehicle did not match the VIN of the license plate, and the license plate “was registered to a subject out of Santa Rosa.” When asked about the discrepancy defendant said that he owned “five different Chevy Corvettes, and that he had switched the [license] plates so he could drive that car around for the day.”
Case Number SC126580A
Defendant was detained by two San Rafael Police Department officers on the morning of October 10, 2002, as he drove a black Corvette on A Street in San Rafael. Officer Ray Fernandez recognized defendant as the driver of the Corvette. He also noticed that defendant was wearing a long leather jacket. Defendant stepped out of the vehicle and onto the sidewalk to be pat searched as requested by Officer Fernandez. During the pat search the officer detected two hard objects in the right pocket of the jacket: one square in shape, which turned out to be a pack of cigarettes; and the other cylindrical, which the officer recognized as a glass drug pipe. When Officer Fernandez asked defendant if “he had the drugs that went with the pipe,” defendant motioned to the right pocket of his jacket. The officer extracted a “baggie of suspected narcotics” out of the jacket pocket, which testing revealed to be 2.38 grams of methamphetamine, along with a silver cigarette lighter. Inside the Corvette the officer found a shirt, a wallet that contained $280 in cash, and a black, hand-held drug scale. When questioned later at the police station defendant admitted that the drug pipe and drugs were “for his own use.” Defendant added that he “had been addicted to methamphetamine for about three years.”
Case Number SC136369B
The burglary and grand theft offenses occurred on Sunday, July 18, 2004, at a vacant residence owned by Martha Thomson at 71 Casneau Avenue in San Rafael. Martha Thomson and her late husband Walter lived in the house for many years, but it had been empty for the past five years before the burglary. The Thomsons’ son Paul had been “keeping an eye” one the house and “cleaning up” every weekend beginning in February of 2004. The house was filled with the Thomsons’ personal belongings, some valuables, and furniture. On Sunday, July 11th, Paul visited the house, cleaned up, then locked the front door and secured the windows before he left.
On the afternoon of July 18, 2004, a neighbor, Jenny Gaetani, and her friend Janet Chapman, observed two women on the porch of Thomsons’ residence as they climbed into the house through a window. The women were carrying shopping bags. After one of the women disappeared into the house, Chapman and Gaetani yelled at the other, “What do you think you’re doing?” One of the women began to leave, and said to the other, “We’ve got to get out of here.” Another neighbor “came running up with a telephone” when Gaetani asked for help.
As the two women were walking down the driveway Gaetani again asked, “What are you doing?” They replied, “we’re here to clean the Thomsons’ house,” and claimed they were “working for somebody by the name of Jeff Brown.” They continued to walk down the street, past two parked cars, a silver Corvette registered to defendant, and a yellow pickup truck with Oregon license plates. The women then turned around, entered a yellow pickup truck, and began to drive away. Gaetani “stopped them” and asked where they were going. They said “down the hill to call this Jeff Brown,” so Gaetani “let them go,” although she “jotted down the license plate” of the yellow pickup truck and gave it to the police.
As Gaetani was on the phone with the police, “two men came out from the Thomsons’ driveway,” defendant and Keith Tadder, and “started walking up the hill.” One of the men was carrying a backpack over his shoulder that “looked like it had stuff in it.” Gaetani yelled at them to “stop,” but they “just kept on walking.” In response to Gaetani’s query, defendant said that he was “not Jeff Brown,” but rather was “Mr. Thomson’s son,” which Gaetani’s husband knew to be untrue.
Before the two men reached the silver Corvette that had been parked next to the yellow pickup truck, police cars arrived. Gaetani said, “Those are the men. Go get them.” The two men were detained and pat searched by the police. Tadder possessed a “very high tech” silver lighter and a “formal butter knife,” but neither he nor defendant had any weapons. Defendant was carrying two nylon bags which “appeared to be full.” He put the bags on the ground when confronted by the police. Defendant and Tadder were then handcuffed and placed in different police cars while an investigation at the scene proceeded.
The officers observed that the condition of the Thomsons’ house was “very dilapidated,” and a “newly installed” fence had been placed around it to “keep people from going into a dangerous area.” The decks attached to the front of the house and garage were rotted and appeared unsafe. The front door was “slightly ajar,” and two windows were open. The inside of the residence was littered with furniture and what “looked like a lifetime of property” placed in boxes and “items out of boxes” that were “stacked throughout the house,” waist high or higher. On the ground outside one of the open windows were “[m]iscellaneous items” that “looked like they were from inside the residence.” The house smelled old and dusty. No other suspects were seen in or around the residence.
The officers obtained the license number of the yellow pickup truck and a description of the two women from the witnesses. A “countywide roadblock and an APB” was issued for the two women and the pickup truck, but they were never found.
When first questioned by the police, defendant said that he “was looking through an abandoned house down the road.” Later, in the patrol vehicle, defendant was asked if he “knew the two women” who had been seen at the residence. He replied “that he did,” but did not want to disclose their names. Defendant claimed that he had never been to the house before, but the two women had “been there a lot,” and “[t]heir house was full of stuff.” When asked why he was in the house, defendant stated that he was moving, “needed the money,” and “went inside looking for stuff.” Defendant added that he “got excited when he found some coins and other good stuff” in the house. Defendant did not advise the officer that he found any of these items on the driveway or sidewalk.
Defendant testified that he was referring to the women’s garage rather than their house.
The two bags seen in defendant’s possession at the house were “opened and inventoried” at the police station. At trial, Martha Thomson identified the contents of the bags as her personal property that she had left in the residence at 71 Casneau Avenue when she and her husband moved out a few years before. She had not given permission to anyone except her son Paul and his wife Diane to enter the residence.
Defendant testified in his defense that a few days before the burglary at 71 Casneau Avenue he and his friend Keith Tadder met two women, Cathy and Kathleen in the parking lot of a Kragen Auto Parts store. The women “invited [them] up to their house to get high.” Defendant and Tadder accompanied the women to their residence in San Rafael, where they shared some methamphetamine and discussed some “stuff” in the garage that the women had obtained from an “abandoned house” they were cleaning in Sausalito. Defendant testified “The girls said there was a lot of cool stuff down there.”
The following Sunday afternoon, Tadder arrived at defendant’s residence to tell him that “the two girls from the few previous days” had “invited him to go down to the house with them” to “go through [the] stuff and see if there was anything” he wanted. Tadder asked defendant for a ride to the abandoned house, and he agreed. Defendant testified that he thought “the two girls” had permission to be in the house.
Defendant parked his silver Corvette on the street and walked with Tadder to the front door of the house, which was locked. They went to the back yard to wait for the two women. Defendant noticed that there was “garbage everywhere around the place.”
After waiting for about an hour, they decided to leave, and walked toward the front of the house. They noticed that the front door was now ajar. Tadder went to the door, momentarily stepped inside, and “yelled the girls’ names,” but defendant proclaimed that he was “going.” Defendant testified that he never entered the house.
As they proceeded down a stairway toward the street, defendant noticed “two bags” on the right side of the driveway. He looked inside the bags, and saw “a bunch of coins and stuff on top.” He was “broke,” so he was “ecstatic” to find the coins. Defendant testified that he knew the “stuff” in the bags belonged to someone, but he was not aware that the two women “did not have permission to have that stuff.”
As defendant was walking down the street away from the house looking into the bags which he had thrown over his shoulder, Tadder said, “The cops are coming down the hill.” Defendant looked up to see police cars as Tadder yelled, “Go, go, go, keep walking. Just walk.” As defendant continued to walk down the street an officer shouted at him, “Hold it right there for a minute.” When the officer asked what he was “doing in that area,” defendant said that he was “checking out the abandoned building down the street.” He declined to identify the “two women” that were seen in the house because he was arrested and did not “want to help the police.”
DISCUSSION
I. The Refusal of the Trial Court to Give Instructions on Good Faith Requested by the Defense .
Defendant makes two claims of instructional error, one in each trial. We will first confront his contention that in the trial of the burglary and grand theft charges the court erred by refusing to give his “requested instructions on good faith belief.”
Defendant asked the trial court to give the jury special instructions that if “one takes personal property with the good faith belief that the property has been abandoned or discarded by the true owner,” or that “one has permission to take the property,” he “is not guilty of theft,” even “if such good faith belief is unreasonable.” He similarly requested an instruction on burglary that if “one enters a building with the good faith belief,” again “even if such good faith belief is unreasonable,” that “the entry into the building was either consented to by the true owner, or was to commit acts which were not criminal one is not guilty of burglary.” Both requested instructions added the element that the prosecution “must prove beyond a reasonable doubt” the defendant’s lack of “a good faith belief that either” the property had been abandoned or discarded, he had permission to take the property, or that the entry into the building was “consented to” or not for the purpose of committing a crime.
The trial court refused to give the proposed instructions, but instead gave a modified version of the CALJIC No. 4.35 instruction on ignorance or mistake of fact, which advised the jury: “An act committed in ignorance or by reason of a mistake of fact, which disproves any criminal intent, is not a crime. A person who commits an act under a good faith belief in the existence of certain facts and circumstances, that, if true, would make the act lawful, is not guilty of a crime when that crime requires a certain specific intent. [¶] A person who commits an act under a good faith and reasonable belief in the existence of certain facts and circumstances, that, if true, would make the act lawful, is not guilty of a crime when that crime requires a general criminal intent.”
Defendant points out that the “crux” of his “defense,” based upon his own testimony, was that “he had a good faith belief that the property was abandoned or that he had permission to take the property.” He argues that the instruction on the good faith “mistake of fact defense” given by the trial court was deficient in its failure to inform the jury of the specific nature of the “certain facts and circumstances” which, if true, “would render the act lawful.” He maintains that the supplemental instructions requested by the defense were therefore necessary to accurately and thoroughly advise the jury of the factual and legal underpinnings of his good faith mistake of fact defense. He adds that the trial court’s failure to give the supplemental instructions deprived him of the right to meaningful consideration of his defense by the jury.
Defendant’s good faith mistake of fact defense was based on the established “ ‘ “rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent. [Citations.] A belief that the property taken belongs to the taker [citations], or that he had a right to retake goods sold [citation] is sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. [Citation.]” [Citation.]’ [Citation.]” (People v. Tufunga (1999) 21 Cal.4th 935, 943.)
The supplemental good faith mistake of fact instructions requested by the defense were in the nature of pinpoint instructions, “ ‘to which a defendant is entitled upon request. Such instructions relate particular facts to a legal issue in the case or “pinpoint” the crux of a defendant’s case . . . . They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.’ [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 878.) “Further, ‘ “[i]t is the trial court’s duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. . . .” ’ [Citation.]” (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318.) “The trial court is required to instruct on the general principles of law that are necessary to the jury’s understanding of the case.” (People v. Grassini (2003) 113 Cal.App.4th 765, 777.)
However, “A trial court must give a pinpoint instruction, even when requested, only if it is supported by substantial evidence.” (People v. Ward (2005) 36 Cal.4th 186, 214; see also People v. San Nicolas (2004) 34 Cal.4th 614, 669; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1058.) A “court need not give a requested instruction on a purported defense unless it is supported by evidence” that is “reasonable, credible and of solid value.” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1165.) Also, a trial court need not give a pinpoint instruction if it is “argumentative” or “merely duplicates other instructions . . . .” (People v. Bolden (2002) 29 Cal.4th 515, 558; see also People v. Coffman and Barlow (2004) 34 Cal.4th 1, 99.)
The pinpoint instructions requested by defendant were patterned on the decision in People v. Navarro (1979) 99 Cal.App.3d Supp. 1 (Navarro), where the defendant was charged with grand theft for taking four wooden beams from a construction site. Evidence was presented “from which the jury could have concluded that [the] defendant believed . . . the wooden beams had been abandoned and that the owner had no objection to his taking them . . . .” (Id. at p. 5.) In light of the evidence, the defendant requested special mistake of fact instructions, which informed the jury that someone who takes personal property with the good faith belief that the property has been abandoned or that he has permission to take the property is not guilty of theft even if that good faith belief is unreasonable. (Id. at p. 3.) Although the trial court instructed on the mistake of fact defense, it modified the defendant’s proposed instructions with the caveat that the good faith belief, either that the property was abandoned or that the person had permission to take the property, had to be “reasonable.” (Ibid.)
The appellate department of the superior court reversed the defendant’s theft conviction in Navarro, based on the essential premise that “ ‘an honest mistake of fact or law is a defense when it negates a required mental element of the crime . . . .’ ” (Navarro, supra, 99 Cal.App.3d Supp. 1, 10, quoting LaFave & Scott, Handbook on Criminal Law (1972) Justification and Excuse, § 47, p. 357.) The court reasoned that a defendant “ ‘does not have the required mental state and thus may not be convicted of the crime’ ” if “ ‘by a mistake of either fact or law did not know’ ” he had no right to take the abandoned property. (Ibid.) The court in Navarro thus concluded that “the trial court in effect instructed the jury that even though defendant in good faith believed he had the right to take the beams, and thus lacked the specific intent required for the crime of theft, he should be convicted unless such belief was reasonable. In doing so it erred. It is true that if the jury thought the defendant’s belief to be unreasonable, it might infer that he did not in good faith hold such belief. If, however, it concluded that defendant in good faith believed that he had the right to take the beams, even though such belief was unreasonable as measured by the objective standard of a hypothetical reasonable man, defendant was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established.” (Navarro, supra, at pp. 10–11, fns. omitted.)
We agree with defendant that his mistake of fact defense was supported by at least substantial – if not terribly convincing – evidence to support an inference that he acted with a subjective belief the property was abandoned property and he had a lawful claim to it. (See People v. Barnett (1998) 17 Cal.4th 1044, 1145; People v. Russell (2006) 144 Cal.App.4th 1415, 1429–1430.) As defendant acknowledges, however, in contrast to Navarro, the trial court here did not commit the error of advising the jury that the mistake of fact must be reasonable. The trial court not only gave the CALJIC No. 4.35 instruction on good faith mistake of fact, but modified it to properly inform the jury that any act committed in ignorance or by reason of a good faith mistake of fact, which disproves criminal intent, is not a crime. The requirement of a reasonable belief was omitted from the instruction given by the court. The instruction thus properly set forth for the jury of the elements of the good faith mistake of fact doctrine as related to the intent element of the burglary and grand theft charges.
The standard “mistake of fact instruction is set forth in CALJIC No. 4.35: ‘An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.’ ” (People v. Celis (2006) 141 Cal.App.4th 466, 474; see also People v. Costa (1991) 1 Cal.App.4th 1201, 1210.)
While we find that the requested instructions were a correct statement of the law and have the support of the evidence, we disagree with defendant’s assertion that the proposed pinpoint instructions were necessary to clarify and explain the good faith mistake of fact defense in the present case. To resolve the claim of a defective jury instruction we must determine whether its “meaning was objectionable as communicated to the jury.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) “ ‘Here the question is, how would a reasonable juror understand the instruction. [Citation.] In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. [Citation.] Finally, we determine whether the instruction, so understood, states the applicable law correctly.’ [Citation.]” (People v. Woodward (2004) 116 Cal.App.4th 821, 834; see also People v. Jensen (2003) 114 Cal.App.4th 224, 239.) “The meaning of instructions is no longer determined under a strict test of whether a ‘reasonable juror’ could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.” (People v. Dieguez, supra, at p. 276; see also Estelle v. McGuire (1991) 502 U.S. 62, 70–75; People v. Young (2005) 34 Cal.4th 1149, 1202; People v. Clair (1992) 2 Cal.4th 629, 663; People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Wade (1995) 39 Cal.App.4th 1487, 1491.)
We are persuaded that the jury was adequately advised of the good faith mistake of fact defense by the instructions given and the arguments of counsel. The CALJIC No. 4.35 instruction specifically advised the jury that a person who acts under a good faith mistake of fact which disproves the requisite specific or general intent to commit an unlawful act, is not guilty of a crime. The good faith mistake of fact instruction was directly followed by a detailed recitation of the essential elements of burglary and grand theft, including the “specific intent to steal and take away someone else’s property” and “deprive the owner permanently of that property.” We must presume the jurors followed the court’s instructions, and further that they were able to understand and correlate the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Considered in their totality, as the instructions must be, the jury was advised that if defendant acted according to a good faith belief that he was entitled to take the abandoned property, he did not entertain the necessary specific intent to be guilty of burglary or grand theft. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Castillo (1997) 16 Cal.4th 1009, 1016.)
The argument of counsel reinforced the application of the good faith mistake of fact defense to the evidence presented. The obvious focus of the defense in the presentation of evidence was upon defendant’s avowed belief that he was somehow authorized to be on the abandoned premises and take the bags of property. Referring to the court’s instructions, defense counsel also repeatedly emphasized in closing argument that if defendant had “good faith knowledge” or belief that the “property was abandoned,” based upon the information given to him “by the women” that “what you’re doing is legal” and the dilapidated state of the property he observed, “then he didn’t violate the law.” The correlation between the CALJIC No. 4.35 instruction and the specific good faith mistake of fact claim of the defense was not lost on the jury.
Upon our review of the record in its entirety, we conclude that the instructions given here correctly and effectively informed the jury on the proper consideration of the good faith mistake of fact defense. The trial court therefore did not err by declining to give the additional and essentially duplicative pinpoint instructions proposed by the defense. (People v. Coffman and Barlow, supra, 34 Cal.4th 1, 99; People v. Panah (2005) 35 Cal.4th 395, 486–487.)
II. The Failure Instruct on Intent to Conceal .
We turn to defendant’s argument that the trial court misadvised the jury on the intent element of the charge of carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)). The court gave to the jury the standard CALJIC No. 12.41 instruction which sets forth the elements of the offense of carrying a concealed dirk or dagger and provides the statutory definition of the terms. (See People v. Aubrey (1999) 70 Cal.App.4th 1088, 1094.) Defendant’s complaint is with the court’s failure to additionally admonish the jury of “an intent to conceal element.” Defendant maintains that “[s]ection 12020, subdivision (a)(4) must be interpreted to include an element of intent to conceal,” and without an instruction to that effect the jury may have convicted him “even if it was convinced that [he] never intended to conceal the knife, or that he was not even aware it was concealed.” He claims that the trial court’s deficient instruction therefore deprived him of the due process “right to have the jury find beyond a reasonable doubt every element of the crime.”
Section 12020 (section 12020) declares it a crime, as either a felony or a misdemeanor, for “[a]ny person” to “[c]arr[y] concealed upon his or her person any dirk or dagger.” (Id., subd. (a)(4).) The statute defines a “dirk” or “dagger” to mean any “instrument,” including a “knife,” “that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.” (Id., subd. (c)(24).)
The position espoused by defendant is not supported by existing authority. In People v. Rubalcava (2000) 23 Cal.4th 322 (Rubalcava), “our Supreme Court considered the intent required to violate section 12020, subdivision (a)(1) by possessing a concealed dirk or dagger. It held that the statute defined a general intent crime because it ‘describes a single criminal act—carrying a concealed dirk or dagger on the person—and makes no reference to any other act or consequence.’ [Citation.]” (In re Martin Alonzo L. (2006) 142 Cal.App.4th 93, 96.) The court in Rubalcava clarified that “ ‘ “[t]he prosecution need not show the intent of the possessor to use an instrument in a violent manner.” ’ (Rubalcava, supra, 23 Cal.4th at p. 329, quoting People v. Grubb [1965] 63 Cal.2d 614, 621, fn. 9 . . . .) In fact, ‘no court [has] construed section 12020 as a specific intent crime.’ (Rubalcava, supra, at p. 329.)” (People v. Gaitan (2001) 92 Cal.App.4th 540, 545.) “In so holding, the court concluded ‘the relevant language of section 12020 is unambiguous and establishes that carrying a concealed dirk or dagger does not require an intent to use the concealed instrument as a stabbing weapon.’ [Citation.]” (People v. Blick (2007) 153 Cal.App.4th 759, 770, italics omitted.) “Accordingly, defendant’s intended use is not an element of the crime, and ‘no further mental state beyond willing commission of the act proscribed by law’ is necessary. [Citation.]” (Rubalcava, supra, at p. 328.)
“The statute does, however, contain a knowledge requirement.” (In re Martin Alonzo L., supra, 142 Cal.App.4th 93, 96.) Rubalcava “said that because the crime of carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)) ‘criminalizes “ ‘traditionally lawful conduct,’ ” we construe the statute to contain a “knowledge” element. [Citation.] Thus, to commit the offense, a defendant must still have the requisite guilty mind: that is, the defendant must knowingly and intentionally carry concealed upon his or her person an instrument “that is capable of ready use as a stabbing weapon.” [Citation.] A defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is therefore not guilty of violating section 12020.’ [Citation.]” (People v. Salas (2006) 37 Cal.4th 967, 980, first italics omitted; italics added; see also People v. King (2006) 38 Cal.4th 617, 627.)
We recognize that in her concurring opinion in Rubalcava Justice Werdegar indicated, “By its use of the artfully ambiguous phrase ‘intentionally carry concealed’ (maj. opn., ante, at p. 332), the majority opinion apparently leaves open the question whether Penal Code section 12020, subdivision (a) requires proof that the defendant intentionally concealed the dirk or dagger on his person, or only that the defendant intentionally carried the instrument, which was in fact not visible.” (Rubalcava, supra, 23 Cal.4th 322, 338, fn. 1, (conc. opn. of Werdegar, J.).) We are bound by the decision of the majority of the Supreme Court in Rubalcava, however, not the inquisitive language of the concurring opinion. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Greenberg v. State Bar (2000) 78 Cal.App.4th 39, 42; Estate of Pittman (1998) 63 Cal.App.4th 290, 300.) And as we read the majority opinion, the court definitively concluded that section 12020, subdivision (a) states a general intent crime with no further specific intent element, other than proof of the defendant’s dual knowledge: that he is carrying the weapon, and that the concealed instrument may be used as a stabbing weapon. (Rubalcava, supra, at p. 332; People v. Taylor (2001) 93 Cal.App.4th 933, 941.)
Justice Werdergar also stated: “Neither the statutory language nor the legislative history is explicit on this point. Reading an intent-to-conceal element into the statute may not be consistent with its overall purposes, as carrying a concealed dagger is dangerous to public safety whether or not the bearer purposely concealed the weapon. Imposing an intent-to-conceal requirement would, however, be an effective way of narrowing the statute’s overbroad scope; the carpenter who puts an awl in his pocket, or the parent carrying a kitchen knife to the PTA potluck, would probably not be found to have intentionally concealed the instrument.” (Rubalcava, supra, 23 Cal.4th 322, 338, fn. 1, (conc. opn. of Werdegar, J.).)
The trial court advised the jury in compliance with the directive of the court in Rubalcava that the intended use of the dirk or dagger is not an element of the crime, but the prosecution must prove that the knife was “knowingly and intentionally carried” by the person, “substantially concealed upon his person,” and was ready for use as a stabbing weapon. (See People v. Prieto (2003) 30 Cal.4th 226, 269; People v. Blick, supra, 153 Cal.App.4th 759, 770.) Nothing in Rubalcava or any other authority required the court to also instruct that the offense required additional proof of an intent to conceal the dirk or dagger. The trial court’s instruction was not an incorrect statement of law.
We add that even if we were to find error in the instruction, we would find it harmless beyond a reasonable doubt under the facts presented. It can reasonably be inferred from evidence that defendant intended to conceal the knife kept in a sheath in his waistband, covered by his shirt. We do not believe that a rational jury would have found that intent to conceal the weapon was unproven. (People v. Schaefer (2004) 118 Cal.App.4th 893, 904–905; People v. Ortiz (2002) 101 Cal.App.4th 410, 416.)
III. The Admission of Evidence of Uncharged Acts .
Defendant also argues that the trial court erred in the methamphetamine possession trial by admitting evidence of his 1993 convictions for possession for sale of methamphetamine (Health & Saf. Code, § 11378), and possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1). He claims that “[t]he prior crimes evidence . . . was not admissible to show intent or knowledge” due to the lack of similarity to the “charged offenses,” and “was also inadmissible under Evidence Code section 352.”
“The rules governing the admissibility of evidence of other crimes are familiar and well settled. Evidence Code section 1101, subdivision (b) provides in pertinent part that evidence of other crimes is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.’ ” (People v. Gray (2005) 37 Cal.4th 168, 202; see also People v. Jablonski (2006) 37 Cal.4th 774, 822–823; People v. Catlin (2001) 26 Cal.4th 81, 111; People v. Diaz (1992) 3 Cal.4th 495, 561; People v. Branch (2001) 91 Cal.App.4th 274, 280; People v. Van Winkle (1999) 75 Cal.App.4th 133, 140.) “ ‘The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352. [Citations.]’ [Citations.]” (People v. Brown (1993) 17 Cal.App.4th 1389, 1395; see also People v. Carpenter (1997) 15 Cal.4th 312, 378–379.) “Because this type of evidence can be so damaging, ‘[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.’ [Citation.]” (People v. Daniels (1991) 52 Cal.3d 815, 856; see also People v. Gray, supra, at p. 202; People v. Hawkins (1995) 10 Cal.4th 920, 951; People v. Johnson (1991) 233 Cal.App.3d 425, 443–444.)
“We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” (People v. Cole (2004) 33 Cal.4th 1158, 1195) “ ‘A court abuses its discretion when its ruling “falls outside the bounds of reason.” ’ [Citation.]” (People v. Catlin, supra, 26 Cal.4th 81, 122.)
A. The Materiality of the Evidence.
We first look at the probative value of the evidence that defendant was previously convicted of crimes that, like the current charged offenses, required proof of his knowledge of the presence and narcotic nature of the controlled substance. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) As with other forms of circumstantial evidence, “the admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.] In order to be material, the fact in dispute ‘may be either an ultimate fact in the proceeding or an intermediate fact “from which such ultimate fact[] may be . . . inferred.” ’ [Citation.]” (People v. Catlin, supra, 26 Cal.4th 81, 146; see also People v. Robbins (1988) 45 Cal.3d 867, 879; People v. Thompson (1980) 27 Cal.3d 303, 315.) To be admissible, evidence of an uncharged offense must tend logically, naturally and by reasonable inference to establish any fact material to the People’s case, or to overcome any matter sought to be proved by the defense. (People v. Robbins, supra, at p. 879; see also People v. Catlin, supra, at p. 146; People v. Carter (1993) 19 Cal.App.4th 1236, 1246.)
Evidence of defendant’s prior convictions was admitted for the proper and limited purpose of proving that he acted with the requisite knowledge of the narcotic nature of the methamphetamine in his possession. (People v. Tripp (2007) 151 Cal.App.4th 951, 956; People v. Thornton (2000) 85 Cal.App.4th 44, 49–50; People v. Ellers (1980) 108 Cal.App.3d 943, 953.) The elements of knowledge and intent were disputed at trial. The announced plan of the defense not to “contest his knowledge of the controlled substance” did not negate the probative value of the evidence. The knowledge element of the charged offense was placed in issue by defendant’s not guilty plea. (See People v. Catlin, supra, 26 Cal.4th 81, 146; People v. Balcom (1994) 7 Cal.4th 414, 422.) A fact like defendant’s intent or knowledge “ ‘generally becomes “disputed” when it is raised by a plea of not guilty or a denial of an allegation. . . . Such a fact remains “disputed” until it is resolved.’ ” (People v. Thornton, supra, at pp. 48–49, quoting People v. Rowland (1992) 4 Cal.4th 238, 260.) “ ‘[T]he prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4, quoting from Estelle v. McGuire, supra, 502 U.S. 62, 69.) Further, the prosecution was not compelled to accept the offered stipulation if the effect would be to deprive the state’s case of its persuasiveness and forcefulness. (People v. Sakarias (2000) 22 Cal.4th 596, 629; People v. Scheid (1997) 16 Cal.4th 1, 17.) Thus, the essential element of knowledge remained a disputed issue at trial.
While other evidence of the knowledge element of the offense may have been adduced, defendant’s previous possession of the same controlled substance furnished a strong inference that the presence of methamphetamine in his coat pocket and vehicle, along with its nature, was known to him. (See People v. Pijal (1973) 33 Cal.App.3d 682, 691.) The circumstance that other evidence existed to establish knowledge and intent did not render the prior convictions irrelevant; evidence is probative “ ‘even though it is cumulative,’ ” subject to exclusion under Evidence Code section 352. (People v. Scheid, supra, 16 Cal.4th 1, 15.) The evidence was thus quite material to the issues before the jury. (See People v. Douglas (1990) 50 Cal.3d 468, 510–511; People v. Ortiz (2003) 109 Cal.App.4th 104, 113–116; People v. Brown, supra, 17 Cal.App.4th 1389, 1395; People v. Evers (1992) 10 Cal.App.4th 588, 598–599; People v. Key (1984) 153 Cal.App.3d 888, 894.)
B. The Similarity of the Prior Convictions.
We further conclude that the prior convictions were sufficiently similar to the charged offenses to justify their admission. “A court considering this question ‘ “must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.” ’ [Citations.]” (People v. Carter, supra, 19 Cal.App.4th 1236, 1246.) “ ‘ “Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.]” . . .’ [Citation.]” (People v. Gray, supra, 37 Cal.4th 168, 202.) The least degree of similarity is required to establish relevance on the issues of intent or knowledge. (See People v. Ewoldt, supra, 7 Cal.4th 380, 402; People v. Tapia (1994) 25 Cal.App.4th 984, 1021.) “ ‘For this purpose, the uncharged crimes need only be “sufficiently similar [to the charged offenses] to support the inference that the defendant ‘ “probably harbored the same [knowledge] in each instance.” [Citations.]’ ” ’ [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 637; see also People v. Carpenter, supra, 15 Cal.4th 312, 379; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1445; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210.) The recurrence of a similar result tends increasingly with each instance to negative accident or inadvertence or other innocent mental state, and thus tends to establish the requisite knowledge. (See People v. Hawkins, supra, at p. 1445.) If a person acts similarly in similar situations, he probably harbors the same knowledge or intent in each instance; the inference to be drawn is that, in light of the uncharged event, the actor, at the time of the charged event, must have had the knowledge or intent attributed to him by the prosecution. (People v. Miller (2000) 81 Cal.App.4th 1427, 1448.) “Only substantial similarity is required.” (People v. Tapia, supra, at p. 1021.)
In contrast, “under case law interpreting [Evidence Code] section 1101, subdivision (b), an extremely high degree of similarity between charged and uncharged crimes was required to establish the uncharged crime’s admissibility to prove identity. ‘For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] “The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.” [Citation.]’ [Citations.]” (People v. Britt (2002) 104 Cal.App.4th 500, 505.)
Prior convictions that required proof of the same element of knowledge had enough similarity to justify admission of the uncharged misconduct evidence. (See People v. Tapia, supra, 25 Cal.App.4th 984, 1022.) The mere fact of defendant’s prior convictions for possession of methamphetamine indicated that his current possession of the same controlled substance was accompanied by the same knowledge. (See People v. Demetrulias (2006) 39 Cal.4th 1, 16–17.)
C. The Admissibility of the Evidence Under Evidence Code Section 352.
The final inquiry is directed at defendant’s claim that evidence of the prior convictions, even if material and sufficiently similar enough to the charged offense, was nevertheless subject to exclusion under Evidence Code section 352. “In addition to its relevance to an issue other than predisposition or propensity, to be admissible under [Evidence Code] section 1101, subdivision (b), the probative value of the evidence of uncharged crimes ‘must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [Citations.]” (People v. Walker (2006) 139 Cal.App.4th 782, 796.) “A court must therefore also examine whether the probative value of prior bad act evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (People v. Zepeda, supra, 87 Cal.App.4th 1183, 1211.) “ ‘ “Since ‘substantial prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are admissible only if they have substantial probative value.” [Citation.]’ [Citation.]” (People v. Hawkins, supra, 98 Cal.App.4th 1428, 1445, quoting People v. Ewoldt, supra, 7 Cal.4th 380, 404, italics omitted.)
“The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.” (People v. Zepeda, supra, 87 Cal.App.4th 1183, 1211.) “The weighing process under [Evidence Code] section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
“The court’s exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.” (People v. Brown, supra, 17 Cal.App.4th 1389, 1396.) “We will reverse only if the court’s ruling was ‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’ [Citation.]” (People v. Branch, supra, 91 Cal.App.4th 274, 282.)
The markedly similar uncharged misconduct evidence, as we have observed, had appreciable relevance on the issue of knowledge. Defendant’s repetition of the act of possession of methamphetamine demonstrated persuasively that the charged possession was not uninformed, inadvertent, mistaken or innocent. We recognize that factors limit the probative value of the prior convictions in the present case: the lack of any overt challenge to the knowledge element of the charged offenses by the defense; the convictions were not recent, but also not too remote given defendant’s continuation of criminal behavior (People v. Gurule (2002) 28 Cal.4th 557, 607); and the other, cumulative evidence of knowledge – particularly, defendant’s statements. We thus take into account that the probative value of the evidence was diminished, although only slightly in light of the significant similarities between the prior and the charged offenses. (People v. Branch, supra, 91 Cal.App.4th 274, 285.)
We look finally at the prejudice associated with the evidence. The evidence was damaging to the defense, but not prejudicial in the sense contemplated by Evidence Code section 352. “ ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against . . . [one party] as an individual and which has very little effect on the issues.” ’ [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 178; see also People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) “ ‘In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citations.]” (People v. Callahan (1999) 74 Cal.App.4th 356, 371.) Defendant’s claim that the evidence was subject to improper consideration to prove disposition is rebutted by the effective limiting instruction given by the trial court and the admonition repeated by defense counsel for the jury not to “use it to show guilt in this case” or as “character evidence,” or to “show he’s a scofflaw.” The jury is presumed to have adhered to the admonitions. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1023.) The source of the evidence was unrelated to the charged offense, the prior convictions were not more inflammatory than the charged offenses, and the jury was not under the impression that defendant had gone unpunished for the prior convictions. Upon consideration of both the probative value of the evidence and its prejudicial effect we find that the trial court did not abuse its discretion by admitting the uncharged acts evidence.
IV. The Denial of Defendant’s Request for a Jury Trial on the Prior Strike Allegation .
Defendant claims that in the burglary and grand theft proceeding (SC136369B) the trial court violated his “rights under the Sixth and Fourteenth Amendments” by denying his request for a jury trial on the issue of “whether [his] 1986 vehicular manslaughter conviction qualified as a serious felony under the Three Strikes Law.” He points out that his prior gross vehicular manslaughter conviction did not qualify as a strike under section 1192.7, subdivision (c)(8), unless the prosecution proved that he personally inflicted great bodily injury on a person, other than an accomplice. (People v. Hernandez (1998) 19 Cal.4th 835, 837.) He maintains that although a jury trial is not required to find “the fact of a prior conviction” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi)), the truth of the prior strike allegation entailed more than a finding of the mere fact of the gross vehicular manslaughter conviction. Defendant asserts that he was therefore erroneously denied a right to a jury trial on the prior strike allegation in the burglary case. He asks us to reverse “the court’s true finding” on the prior strike allegation.
In the trial of the three consolidated drug cases, the allegation that defendant suffered a prior serious felony conviction that qualified as a strike pursuant to section 1192.7, subdivision (c), was tried before a jury.
Defendant acknowledges that in People v. McGee (2006) 38 Cal.4th 682, 709 (McGee), the California Supreme Court specifically found no constitutional impediment to judicial determination that a prior conviction qualifies as a serious felony for purposes of enhanced punishment under the Three Strikes law. The court declared that the Apprendi exception to the jury trial right for prior convictions, “is not limited simply to the bare fact of a defendant’s prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a ‘violent’ felony) that renders the defendant subject to an enhanced sentence.” (McGee, supra, at p. 704, italics omitted.) The court explained that Apprendi distinguishes between “sentence enhancements that require factfinding related to the circumstances of the current offense, such as whether a defendant acted with the intent necessary to establish a ‘hate crime’─a task identified by Apprendi as one for the jury─and the examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction─a task to which Apprendi did not speak and ‘the type of inquiry that judges traditionally perform as part of the sentencing function.’ [Citation.]” (McGee, supra, at p. 709, italics omitted; see also People v. Yim (2007) 152 Cal.App.4th 366, 370–371.) The court thus concluded: “We recognize the possibility that the United States Supreme Court, in future decisions, may extend the Apprendi rule in the manner suggested by the Court of Appeal below. But because in our view there is a significant difference between the nature of the inquiry and the factfinding involved in the type of sentence enhancements at issue in Apprendi and its progeny as compared to the nature of the inquiry involved in examining the record of a prior conviction to determine whether that conviction constitutes a qualifying prior conviction for purposes of a recidivist sentencing statute, we are reluctant to assume, in advance of such a decision by the high court, that the federal constitutional right to a jury trial will be interpreted to apply in the latter context.” (McGee, supra, at p. 709.)
The court in People v. Black (2007) 41 Cal.4th 799, 819, very recently reaffirmed the holding in McGee that the prior conviction exception of Apprendi must be interpreted “to include 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. (See cases cited in McGee, supra, 38 Cal.4th at pp. 703–706, 42 Cal.Rptr.3d 899, 133 P.3d 1054; see also United States v. Smith (6th Cir. 2007) 474 F.3d 888, 892 [no right to a jury trial concerning the circumstance whether defendant’s criminal history was ‘ “extensive and egregious” ’].)” In the absence of authority to the contrary, we are bound by the decision in McGee to conclude that defendant was not improperly deprived of the right to a jury trial on the prior strike conviction allegation. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455; People v. Yarbrough (1997) 57 Cal.App.4th 469, 477.)
V. The Finding of a Prior Strike Conviction .
We proceed to the claims of error that are common to both trials or relate to the consolidated sentencing proceeding, the first of which is that the two findings of a prior strike conviction are not supported by the evidence. The jury in the drug trial and the court in the burglary trial found that defendant’s 1986 conviction for gross vehicular manslaughter (former § 192, subd. (c)(3)) was a qualifying prior strike conviction under section 1192.7, subdivision (c). Defendant claims the evidence “failed to prove that the victim was not an accomplice,” as required by section 1192.7, subdivision (c), to establish that the gross vehicular manslaughter conviction “was a serious felony.” He maintains that according to the record of the conviction the victim of the prior conviction, Tracy White, was intoxicated and may have “encouraged or facilitated” defendant to “drive drunk,” thereby making him an accomplice to the crime. He submits that without supporting evidence the prior gross vehicular manslaughter conviction cannot be used as “serious felony” to increase the sentence for the current burglary conviction to a “life term,” and he must be resentenced with a single “strike prior, [his] 1983 attempted robbery conviction.”
Two separate findings that defendant committed a qualifying prior strike conviction were made in the two trials – one by a jury and one by the trial court – in which essentially the same evidence was presented. While defendant challenges both findings, he does so based upon evidence and grounds that are common to both trials below. We will therefore consider this as a single issue before us, as the parties have done.
“ ‘Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.’ (Pen. Code, § 191.5, subd. (a).) The elements of Penal Code section 191.5 are: (1) driving a vehicle while intoxicated; (2) when so driving, committing some unlawful act, such as a Vehicle Code offense with gross negligence, or committing with gross negligence an ordinarily lawful act which might produce death; and (3) as a proximate result of the unlawful act or the negligent act, another person was killed.” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159, fn. omitted.)
“Under the three strikes law, a prior conviction is a ‘serious felony’ that counts as a strike for sentence enhancement purposes if it is a crime listed in section 1192.7, subdivision (c). (§ 667, subd. (d)(1).)” (People v. Bueno (2006) 143 Cal.App.4th 1503, 1507.) “The list of serious felonies under section 1192.7, subdivision (c) includes both specific, enumerated crimes and more generic descriptions of criminal conduct.” (People v. Banuelos (2005) 130 Cal.App.4th 601, 604.) “Section 1192.7, subdivision (c)(8) provides that, besides any of a number of specific listed offenses [which do not include gross vehicular manslaughter], a ‘serious felony’ is ‘any other felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, . . .’ ” (People v. Bow (1993) 13 Cal.App.4th 1551, 1556; see also People v. Sargent (1999) 19 Cal.4th 1206, 1222.) “[B]y virtue of subdivision (c)(8) of Penal Code section 1192.7, either gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5) or gross vehicular manslaughter other than while intoxicated (Pen. Code, § 192, subd. (c)(1)) will be a serious felony if in the commission of the crime the defendant personally inflicts great bodily injury on any person other than an accomplice . . . .” (People v. Gonzales (1994) 29 Cal.App.4th 1684, 1688.) Thus, respondent was required to show that defendant had inflicted great bodily injury on a person who was not an accomplice to the crime. (People v. Thoma (2007) 150 Cal.App.4th 1096, 1100; People v. Leng (1999) 71 Cal.App.4th 1, 9.)
The evidence presented below consisted of a packet of documents that proved defendant suffered convictions for vehicular manslaughter with gross negligence (former Pen. Code, § 192, subd. (c)(3), now § 191.5), driving under the influence with injury (Veh. Code, § 23153, subd. (a)), driving at 0.10 percent blood-alcohol content or above with injury (Veh. Code, § 23153, subd. (b)), and driving with a revoked or suspended license (Veh. Code, § 14601.2). The prosecution also offered the opinion of this court on appeal which affirmed the convictions and articulated the supporting evidence: that defendant and the victim left a party in defendant’s vehicle at around 2:00 a.m.; both had been drinking, and the victim had consumed cocaine; defendant was the driver despite the host’s supplication that he not drive; defendant lost control of his vehicle on a curve while driving at a very excessive speed; the vehicle struck a telephone pole, killing the victim at the scene and seriously injuring defendant; defendant’s blood alcohol when measured later at the hospital was 0.16 percent, which according to an expert extrapolated to 0.22 percent when the accident occurred. (See People v. Von Staden (1987) 195 Cal.App.3d 1423, 1425–1426 (Von Staden.)
Defendant argues that the evidence “does not constitute proof beyond a reasonable doubt that White was not an accomplice” to the vehicular manslaughter with gross negligence offense. He maintains that according to the evidence summarized in the Von Staden opinion, White may have “facilitated or encouraged” defendant “to drive under the influence that night, and that therefore, under the natural and probable consequences doctrine, he could be considered an accomplice to the vehicular manslaughter.”
Respondent had the burden to prove beyond a reasonable doubt the alleged prior convictions. (People v. Bueno, supra, 143 Cal.App.4th 1503, 1507.) “In determining the truth of a prior conviction allegation, the trier of fact may look to the entire record of the conviction, but no further. [Citation.] The prosecution is ‘precluded from presenting any evidence outside the record of conviction to prove the circumstances of the prior crime.’ [Citation.] The record of the prior conviction includes transcripts of the preliminary hearing, the defendant’s guilty plea, and the sentencing hearing.” (People v. Thoma, supra, 150 Cal.App.4th 1096, 1101, italics omitted.) The California Supreme Court has held that “appellate opinions, in general, are part of the record of conviction that the trier of fact may consider in determining whether a conviction qualifies under the sentencing scheme at issue,” although the court warned that “[w]hether and to what extent an opinion is probative in a specific case must be decided on the facts of that case.” (People v. Woodell (1998) 17 Cal.4th 448, 457; see also People v. Trujillo (2006) 40 Cal.4th 165, 180–181.)
“ ‘In reviewing the sufficiency of the evidence of the prior convictions, we determine “ ‘. . . whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt.’ ” ’ [Citations.]” (People v. Bueno, supra, 143 Cal.App.4th 1503, 1507.) As with any review, we examine “ ‘ “ ‘the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” [Citation.] . . .’ [Citation.]” (People v. Carter (2005) 36 Cal.4th 1215, 1257–1258.)
The contested element of the prior conviction finding here is whether the evidence established that the victim of the gross vehicular manslaughter conviction, Tracy White, was not an accomplice. An accomplice is defined in Evidence Code section 1111 “ ‘as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 504; see also People v. Davis (2005) 36 Cal.4th 510, 543.) “In order to be an accomplice, the witness must be chargeable with the crime as a principal ([Pen. Code,] § 31) and not merely as an accessory after the fact ([Pen. Code,] §§ 32, 33).” (People v. Sully (1991) 53 Cal.3d 1195, 1227.) “ ‘To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” [Citation.] When the offense charged is a specific intent crime, the accomplice must “share the specific intent of the perpetrator”; this occurs when the accomplice “knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” [Citation.]’ [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1118, italics omitted.)
While the least adjudicated elements of the crime of gross vehicular manslaughter do not establish a serious felony conviction for purposes of section 1192.7, subdivision (c)(8), we conclude that the entire record of the conviction offered by the prosecution provides adequate evidentiary support for the findings that defendant personally inflicted great bodily injury upon a victim who was not an accomplice. Defendant’s assertion that we must “presume the offense was not a strike” absent more definitive evidence that “forecloses the possibility” of the victim’s role as an accomplice may have some weight in the trial court, but is misguided on appeal “[g]iven this court’s limited role” in assessing the evidence and the “enormous burden” borne by the defendant “in claiming there was insufficient evidence” to sustain the prior conviction finding. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) “It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence.” (Ibid.) A crucial factor in our review is that on appeal, we must “view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support.” (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193; People v. Hayes (1992) 3 Cal.App.4th 1238, 1249–1250.) “ ‘The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]’ [Citation.]” (People v. Farnam (2002) 28 Cal.4th 107, 143; see also People v. Kraft (2000) 23 Cal.4th 978, 1053.)
In contrast to the cases relied upon by defendant, specific evidence in support of the gross vehicular manslaughter conviction is part of the record before us. (Cf., People v. Cortez (1999) 73 Cal.App.4th 276, 283; People v. Henley (1999) 72 Cal.App.4th 555, 558.) The evidence recited in the prior appellate opinion in Von Staden demonstrates that the victim was a passenger in the vehicle driven by defendant, nothing more – an intoxicated passenger, as defendant points out, but still just a passenger. A legitimate inference to be drawn from the evidence, considered as it must be in the light most favorable to the judgment, is that the victim had no role whatsoever in the offense. At trial, the defense offered no conflicting evidence that White in any way acted with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. Mere presence at the scene of the offense or giving assistance without sharing the perpetrator’s purpose and intent does not establish that a person is an accomplice. (People v. Sully, supra, 53 Cal.3d 1195, 1227; People v. Stankewitz (1990) 51 Cal.3d 72, 90; People v. Snyder (2003) 112 Cal.App.4th 1200, 1220.) Nothing in the record indicates that the victim was also driving the vehicle, as in People v. Verlinde, supra, 100 Cal.App.4th 1146, 1160, in which the court found that accomplice liability for the crimes of gross vehicular manslaughter and felony drunk driving was “possible” under the “unusual factual situation” where the defendant and another intoxicated passenger, Vessels, “shared driving.” The findings that defendant sustained a prior strike conviction are supported by substantial evidence.
The present case is thus distinguishable from People v. Flores (2005) 129 Cal.App.4th 174, 181, in which the trial court erred by failing to include the language “other than an accomplice” in the CALJIC No. 17.95.5 instruction on personal discharge of a firearm causing death. (Pen. Code, § 12022.53, subd. (d).) The omission of the accomplice exclusion language from the instruction was found prejudicial in Flores, as the victim was indisputably an accomplice and coconspirator. (Flores, supra, at p. 181.) Here, we are not dealing with any instructional error, and factually the opposite is true: the evidence demonstrates that the victim was not an accomplice.
The court also concluded, however, that “Vessells was not, as a matter of law, an accomplice of gross vehicular manslaughter or felony drunk driving.” (People v. Verlinde, supra, 100 Cal.App.4th 1146, 1161.)
VI. Defendant’s Opportunity to Defend the Allegations of a Prior Strike Conviction .
Defendant next argues that “[b]esides violating Apprendi,” the findings that he “personally inflicted great bodily injury on a nonaccomplice during the commission of the prior vehicular manslaughter also violated due process.” Defendant complains that in both trials on the prior strike allegations he “never had any meaningful opportunity to submit proof as to whether he personally inflicted great bodily injury and whether White was an accomplice, because these were not justiciable issues” in the “1986 case.”
We admit to being somewhat puzzled by this argument. While we agree that defendant had no reason in the 1986 proceeding to contest the status of the victim as an accomplice or to show that he did not personally inflict great bodily injury upon the victim, he had every motivation and opportunity to dispute those issues in the two trials below that are under review in this appeal. He was charged in both proceedings with commission of a 1986 serious felony under the three strikes law based on a violation of section 192, subdivision (c)(3). He thus had explicit notice that the prosecution was required to prove the essential elements of the prior serious felony conviction for gross vehicular manslaughter pursuant to section 1192.7, subdivision (c)(8): that he personally inflicted great bodily injury on a person, other than an accomplice. (See People v. Arnett (2006) 139 Cal.App.4th 1609, 1613.) He was entitled to contest the evidence offered by the prosecution and present any evidence in his defense to establish that the victim was an accomplice to the 1986 gross vehicular manslaughter offense. That he failed to do so does not constitute a violation of his due process rights.
VII. The Imposition of an Upper Term Sentence for Possession of Methamphetamine.
We turn to defendant’s contention that the trial court’s imposition of an upper six-year term for possession of methamphetamine (SC126580A) violated his jury trial and due process rights as elucidated in Blakely, supra, 542 U.S. 296, and Cunningham, supra, 166 L.Ed.2d 856. He argues that the trial court’s reliance upon findings of aggravating factors “beyond what is inherent in the jury’s verdict or [his] admissions” to justify imposition of an upper term violated his “Sixth and Fourteenth Amendment rights to a jury trial” and “proof beyond a reasonable doubt.”
In Blakely, the United States Supreme Court revisited the rule articulated in Apprendi, supra, 530 U.S. 466, 490, 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.’ ” (Blakely, supra, 542 U.S. 296, 301, italics added.) The court found that an exceptional sentence beyond the standard range sentence for the offense imposed by a trial judge under Washington’s determinate sentencing based upon several specified facts found by the trial judge violated the Apprendi rule that the jury verdict alone must “authorize the sentence.” (Blakely, supra, at p. 305, fn. 8; see also People v. Riskin (2006) 143 Cal.App.4th 234, 241; People v. Linder (2006) 139 Cal.App.4th 75, 83–84.)
The California Determinate Sentencing Law (DSL) was temporarily spared from the reach of Blakely by the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), where the California Supreme Court decided that a “defendant’s constitutional right to a jury trial” is “not violated by the trial court’s imposition of the upper term sentence” for a conviction “or by its imposition of consecutive sentences” upon two or more convictions. (Id. at p. 1264.) After defendant was sentenced, however, in Cunningham, supra, 166 L.Ed.2d 856, the United States Supreme Court disagreed with the Black I decision, and concluded: “In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Blakely, supra, 542 U.S. 296, 303 (‘[T]he “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.’ (Emphasis in original.)).] Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendi’s bright-line rule: Except for 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.’ [Apprendi, supra, 530 U.S. 466, 490.]” (Cunningham, supra, at p. 873.) The court summarized: “Contrary to the Black court’s holding, our decisions from Apprendi to [United States v. Booker (2005) 543 U.S. 220] point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, at p. 876.)
A. The Claim of Forfeiture .
The Attorney General submits that defendant forfeited his challenge to the imposition of an upper term under Blakely and Cunningham by failing to object on that basis at trial. The concise answer to the Attorney General’s forfeiture argument is provided by very recent authority from the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). The court in Sandoval, supra, at page 837, footnote 4, concluded that where, as here, “the trial and the sentencing proceedings took place after the high court’s decision in Blakely and after this court’s decision in Black I,” an objection in the trial court “would have been futile,” and therefore the “claim was not forfeited.”
B. The Imposition of an Upper Term .
We turn to the merits of the contention that Blakely error was committed by the trial court’s imposition of an upper term on count 1 based upon the following articulated factors: defendant has a “lengthy criminal history” of “violent conduct in continuous possession of weapons;” he “suffered 30 prior criminal cases” and four felony convictions; he has served two prior prison terms; he was on probation when the current offenses were committed; and he did not successfully complete probation.
Again, recent pronouncements by the California Supreme Court are determinative of this issue. The court in Sandoval observed that 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. [Citation.] 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.” (Sandoval, supra, 41 Cal.4th 825, 836–837.) In the companion case of People v. Black (2007) 41 Cal.4th 799 (Black II), the court declared that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, at p. 812, italics omitted.) The court added: “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Id. at p. 813.) From this premise the court reasoned: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance 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.” (Id. at p. 816, italics added.)
Moreover, the court in Black II decided that the prior conviction exception to the right to a jury trial extends to any aggravating circumstance related to the “defendant’s criminal history” or recidivism “that may be determined by examining the records of the prior convictions.” (Black II, supra, 41 Cal.4th 799, 818, 819.) Prior convictions listed in the probation report that were both numerous and of increasing seriousness were also found legally sufficient by the court in Black II to render the defendant eligible for the upper term sentence as an aggravating circumstance without violation of the right to a jury trial under Blakely. (Black II, supra, at pp. 818–819.) Here, as in Black II, defendant’s record of prior convictions and related recidivist factors justified the selection of the upper term as the statutory maximum sentence. Thus, we follow the authority of the California Supreme Court’s decision in Black II to find that imposition of the upper term did not contravene defendant’s constitutional right to jury trial. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455; People v. Sullivan (2007) 151 Cal.App.4th 524, 563; People v. Scott (2000) 85 Cal.App.4th 905, 915–916.)
VIII. The Imposition of Multiple Restitution Fines .
Pursuant to section 1202.4, subdivision (b), defendant was ordered to pay restitution fines in three separate cases in the amounts of: $1,600 in SC126580A, $600 in SC124442A, and $200 in SC122889A. In all three cases defendant was also ordered to pay parole revocation fines in the same amounts pursuant to section 1202.45. He complains that only “a single restitution fine and related parole revocation fine” was authorized “because . . . the three drug cases were consolidated and jointly tried and sentenced.” He submits that the $1,600 restitution and parole revocation fines in SC126580A may stand, but the other two “are unauthorized and must be stricken.”
Under section 1202.4, subdivision (b), “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” In similar language, section 1202.45 provides in pertinent part: “ ‘In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked. . . .’ [Citations.]” (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.)
Defendant’s contention that only a single restitution fine was authorized in the three drug cases is based on the language of section 1202.4, subdivision (b), that “[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine.” He claims that with the consolidation of the three cases for trial and sentencing, only one case remained for purposes of section 1202.4, subdivision (b).
When we examine the language of the statutes defendant’s argument has superficial appeal. “Where a defendant has been convicted of several felony offenses in one proceeding, a restitution fine is not imposed on ‘each count’ but instead one fine is imposed taking into account all the offenses in the proceeding; this proposition is based on the language of section 1202.4, subdivision (b) which states that in ‘every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine,’ and then sets forth a formula for calculating the total amount. (Italics added.)” (People v. Holmes (2007) 153 Cal.App.4th 539, 547.) “[T]he statute authorizes only a single restitution fine in each case.” (People v. McElroy (2005) 126 Cal.App.4th 874, 885.)
Thus in People v. Ferris (2000) 82 Cal.App.4th 1272 (Ferris), a second $10,000 restitution fine was stricken where, the defendant was charged by two separate informations with crimes committed on two different dates, but the two cases were consolidated on motion by the prosecution, then tried before a single jury and presented together for sentencing, although separate case numbers were maintained and separate verdicts were rendered. (Id. at pp. 1275–1276.) At sentencing, the court imposed two $10,000 restitution fines, each one set at the statutory maximum. (Ibid.) The court found the “every case” language of the statutes “ambiguous” in the context of separately charged but jointly tried and sentenced cases, and therefore adopted “the statutory construction that is favorable to Ferris. We conclude the phrase ‘every case’ in sections 1202.4, subdivision (b) and 1202.45 includes a jointly tried case although it involves charges in separately filed informations. The trial court granted the prosecutor’s motion to join the charges for purposes of trial. Therefore, the charges in the separate informations were effectively joined in one case despite any technical retention of separate case numbers. Accordingly, in this case the trial court erred by imposing restitution fines in ‘both cases.’ ” (Id. at p. 1277.)
Section 1202.4, subdivision (b)(1) specifies: “The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.”
We find that under the distinguishable circumstances presented to us here, however, the trial court did not err. In contrast to the multiple $10,000 restitution fines imposed in Ferris, the trial court in the case before us imposed separate fines that did not in total even approach the $10,000 statutory maximum. Despite the consolidation of the proceedings, the amount of the fines set by the trial court, both individually and in the aggregate, were entirely consistent with the standards and purpose of section 1202.4. Subdivision (b)(1) specifies that, “The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense . . . .” The trial court thus “possesses discretion to set the restitution fine in an amount ‘commensurate with the seriousness of the offense’ at any amount between the statutory minimum of $200 and the statutory maximum of $10,000 (§ 1202.4, subd. (b)(1)).” (People v. Brown (2007) 147 Cal.App.4th 1213, 1227; see also People v. Urbano (2005) 128 Cal.App.4th 396, 405.) “In addition, the court ‘shall consider any relevant factors including . . . the seriousness and gravity of the offense and the circumstances of its commission, . . . and the number of victims involved in the crime.’ (§ 1202.4, subd. (d).)” (People v. Hanson (2000) 23 Cal.4th 355, 362; see People v. Harvest (2000) 84 Cal.App.4th 641, 648.)
The trial court in the present case acted well within its discretion in setting the amounts of the fines for the three entirely separate events in accordance with the statutory purpose and guidelines. The unrelated circumstance that the proceedings were consolidated for trial does not in any way demonstrate an abuse of that discretion. In People v. Enos (2005) 128 Cal.App.4th 1046, 1048, the trial court imposed restitution fines in a “single sentencing hearing” of $600 in one case, and $200 each in two other separate cases that “ended with a comprehensive plea agreement” in three separate cases. The defendant in Enos complained that due to the single sentencing hearing “the trial court erred by imposing three separate restitution fines under sections 1202.4, subdivision (b) and 1202.45.” (Ibid.) The court in Enos found Ferris “inapplicable,” in part because “there was never a motion to join or consolidate the three cases,” and they “were not tried together, as they were in Ferris,” but more importantly because “the Ferris court’s primary concern was not with the trial court’s imposition of more than one section 1202.4, subdivision (b) restitution fine and more than one suspended section 1202.45 parole revocation fine but rather with the resulting total of the fines that exceeded the $10,000 statutory limit.” (Id. at p. 1049.) The court in Enos held, “There is nothing in section 1202.4, subdivision (b) or section 1202.45 that prohibits multiple section 1202.4, subdivision (b) restitution fines and multiple section 1202.45 parole revocation fines in consolidated cases disposed of at a single sentencing hearing. To read these statutes as precluding separate fines that do not exceed the statutory maximum would result in a rule of law with no practical effect, because a defendant could never show prejudice.” (Ibid.) The court concluded that since the total amount of the restitution fine was well below the statutory maximum and could have been imposed “as a whole instead of breaking them down separately for each case,” and the “total fine would be the same, whether imposed in the aggregate or portioned and separately imposed in each case, there cannot be any prejudice to appellant.” (Id. at pp. 1049–1050.)
The opinion in Enos pointedly noted that Ferris “does not address the question whether separate fines are proper where the total does not exceed the statutory maximum.” (People v. Enos, supra, 128 Cal.App.4th 1046, 1049.)
The court in People v. Schoeb (2005) 132 Cal.App.4th 861, 864–865 (Schoeb), agreed with the reasoning in Enos that “the imposition of multiple restitution fines spread over several cases that cumulatively did not exceed the $10,000 statutory maximum could never constitute prejudicial error,” and repeated with approval the pronouncement that “ ‘There is nothing in section 1202.4, subdivision (b) . . . that prohibits multiple section 1202.4, subdivision (b) restitution fines . . . in consolidated cases disposed of at a single sentencing hearing.’ [Citation.]” The court in Schoeb concluded that where the total restitution fine of $2,600 imposed did not exceed the $10,000 limit imposed by the statute, “Under Enos, there was no error here.” (Id. at p. 865.) We consider the decisions in Schoeb and Enos persuasive, and find that no prejudicial error occurred in the imposition of multiple restitution fines.
IX. The Imposition of Court Security Fees .
Defendant’s final contention is that the $20 court security fees he was ordered to pay in each of the three drug cases pursuant to section 1465.8 violated “the constitutional ban on ex post facto laws and Penal Code section 3.” The basis for his claim is that the “conduct giving rise to those cases occurred prior to [the] enactment of section 1465.8” on August 2, 2003.
Section 1465.8 enacted on August 2, 2003, became operative on August 17, 2003. (Stats. 2003, ch. 159 §§ 25, 27.)
The California Supreme Court recently resolved this issue against defendant by definitively declaring in People v. Alford (2007) 42 Cal.4th 749, 752, 755, 759, that section 1465.8 may be retroactively imposed without violation of ex post facto principles or section 3. The imposition of the three court security fees upon defendant was therefore not error.
DISPOSITION
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.