Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA079493. Kelvin D. Filer, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
INTRODUCTION
Appellant Jamal Donell Williams challenges his conviction of unlawfully driving or taking a vehicle and giving false information to a police officer on the grounds of instructional and sentencing error. We conclude the trial court was not required to instruct upon a violation of Penal Code section 499b as a lesser included offense of Vehicle Code section 10851, as taking a motor vehicle is no longer within the scope of Penal Code section 499b. The trial court permissibly imposed an upper term based on recidivism-related factors. Appellant’s disproportionality claim is moot and was forfeited by his failure to raise it in the trial court.
BACKGROUND AND PROCEDURAL HISTORY
A deputy sheriff spotted appellant driving a truck that had been reported stolen. Appellant told the deputy his name was Derrick Sinclair and the truck belonged to Julio Iglesias. Luis Magallenes testified that his truck was taken from him by appellant and co-defendant Christopher Williams, who had a gun. Several of appellant’s relatives testified for the defense that when appellant was driving the truck, he was accompanied by a “Mexican” man who appeared to be under the influence of drugs. One witness testified appellant asked the man if he could keep the truck to drive the witness to the home of appellant’s mother. The man agreed, got out, and walked away.
A jury convicted appellant of unlawfully driving or taking a vehicle and giving false information to a police officer. The jury could not reach a verdict on a charge of carjacking. The court declared a mistrial, and the charge was ultimately dismissed. Appellant admitted he previously suffered a serious or violent felony conviction and served two prison terms within the scope of Penal Code section 667.5, subdivision (b). Appellant was sentenced to a second strike prison term of eight years, which included two years for prior prison term enhancements.
The jury made no findings regarding an allegation that a principal was armed in the commission of the Vehicle Code section 10851 violation. No explanation for this omission appears in the record.
On appeal, this court vacated appellant’s sentence on the ground the trial court’s imposition of an upper term on the basis of facts it, not the jury, found violated Cunningham v. California (2007) 549 U.S. ---- [127 S.Ct. 856] (Cunningham). Respondent petitioned for review, which the California Supreme Court granted on June 13, 2007. On September 12, 2007, the Supreme Court remanded this matter to this court for reconsideration in light of People v. Black (2007) 41 Cal.4th 799.
With the exception of the discussion of the Cunningham issue, the instant opinion is substantially unchanged from that issued in this case on March 19, 2007.
DISCUSSION
1. The trial court was not required to instruct upon a violation of Penal Code section 499b as a lesser included offense of Vehicle Code section 10851.
Appellant contends the trial court was required to instruct the jury sua sponte that joyriding, as defined in Penal Code section 499b, was a lesser included offense of driving or taking a vehicle, as defined in Vehicle Code section 10851. Had he committed his offense eleven years ago, his contention might have merit. However, Penal Code section 499b was amended in 1996 to apply only to bicycles, motorboats, and vessels. It no longer includes the taking of a car or truck.
Appellant acknowledges the amendment, but contends section 499b still governs the taking of a motor vehicle. He bases his claim upon the final sentence in the following statement of legislative intent: “The legislative intent behind the amendments to Section 499b of the Penal Code, as set forth in Section 1 of this act, is to clarify and streamline existing law by deleting provisions in Section 499b of the Penal Code that are generally duplicative of provisions in subdivision (a) of Section 10851 of the Vehicle Code. These amendments to Section 499b of the Penal Code shall not be construed as evidencing a legislative intent to eliminate a crime.” (Stats. 1996, ch. 660, § 3.)
Appellant’s reliance on the final sentence is misplaced. The express intent of the 1996 amendment was to eliminate confusion and duplication by placing “joyriding” in a motor vehicle under the coverage of Vehicle Code section 10851 only. Excluding joyriding in a motor vehicle from the scope of Penal Code section 499b did not eliminate a crime; it simply left Vehicle Code section 10851 as the governing statute. The issue of whether the conduct should be deemed a misdemeanor or felony is encompassed by the wobbler status of the offense provided in Vehicle Code section 10851. It is thus a sentencing issue, not one of substantive guilt. Accordingly, it would have been inappropriate to instruct the jury upon a lesser included offense.
2. The trial court properly imposed an upper term on the basis of recidivism- related factors.
The trial court imposed the upper term for unlawfully driving or taking a vehicle (count 3). It explained that it found appellant’s “prior convictions were of increasing seriousness,” “his performance on probation and parole is unsatisfactory. He was on parole at the time of the arrest. [¶] And I don’t find any circumstances in mitigation.” Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the imposition of the upper term violated due process, in that it was based upon facts found by the court, not a jury.
Apprendi, supra, 530 U.S. 466, essentially requires any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum to be charged, submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) Apprendi explained that recidivism is distinguishable from other matters used to increase a sentence because (1) recidivism traditionally has been used by sentencing courts to increase the length of a sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial procedural protections. (Id. at p. 488.)
The trial court based its choice of the upper term upon recidivism-type factors, such as appellant’s prior convictions and the increasing seriousness of his convictions, which is permissible under Apprendi, Blakely, and Cunningham. (People v. Black, supra, 41 Cal.4th at pp. 819-820.) In addition, the factors of appellant’s poor performance on parole and probation and his status on parole at the time of the charged offenses are closely related to recidivism. Even if the parole and probation performance were inappropriate factors, “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.” (Id. at p. 812.) Accordingly, the trial court permissibly imposed an upper term.
3. Appellant forfeited his disproportionality claims.
Appellant contends his eight-year prison sentence is grossly disproportional, and is in violation of the state and federal constitutional prohibitions on cruel and unusual punishment and double jeopardy. However, appellant forfeited these claims by failing to raise it in the trial court. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) In any event, his claim is mooted by the necessity for resentencing.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.