Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD191611, Laura P. Hammes, Judge.
HUFFMAN, Acting P. J.
A jury convicted Paul Zaragoza of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a); count 1), carjacking (§ 215, subd. (a); count 2), residential burglary (§§ 459, 460; count 3), assault with a semiautomatic firearm (§ 245, subd. (b); count 4), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 5). The jury also found true allegations that Zaragoza personally used a firearm, a semiautomatic handgun, within the meaning of section 12022.53, subdivision (b) during the commission of counts 1 and 2 and within the meaning of section 12022.5, subdivision (a) during the commission of counts 3 and 4.
All statutory references are to the Penal Code unless otherwise specified.
Although the amended information charged Zaragoza with the instant crimes under his alias Garcia Gerardo, before trial the matter was clarified to list and refer to him by his true name Zaragoza throughout the trial. Zaragoza also stipulated pretrial to the status of being a convicted felon with regard to count 5.
The jury also found true that the personal use of the firearm with regard to count 4 was additionally within the meaning of section 1192.7, subdivision (c)(8).
In a bifurcated proceeding, the trial court found true allegations that Zaragoza had suffered two probation denial priors (§ 1203, subd. (e)(4)) and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), which also constituted a strike under the Three Strikes law (§§ 667, subds. (b) -(i), 668, 1170.12). The court subsequently sentenced Zaragoza to prison for a total term of 33 years, consisting of an upper nine-year term for the count 2 carjacking, which was then doubled under the three strikes law, a consecutive 10-year term for the section 12022.53, subdivision (b) firearm enhancement, and a five-year consecutive term for the serious felony prior. The sentences on the remaining counts were stayed pursuant to section 654.
The court also sentenced Zaragoza on two probation revocation cases, which were run concurrent to the sentences in this case.
Zaragoza appeals, contending his convictions for first degree robbery and burglary must be reversed because the element of entry into the victim's residence for both was not satisfied beyond a reasonable doubt and his conviction for carjacking must be reversed due to insufficient evidence that a vehicle was taken from the "person or immediate presence" of the victim. He alternatively asserts that he was denied the effective assistance of counsel by his trial counsel's failure to alert the jury to evidence negating the element of entry into the victim's trailer for the robbery and burglary convictions. Zaragoza also contends that the imposition of the upper term sentence on count 2 violated his federal constitutional rights to a jury trial and proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments and the holdings of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We affirm.
FACTUAL BACKGROUND
Prosecution Case
Daniel Benitez testified via a Spanish language interpreter that on June 14, 2005, he was awakened at around 1:00 a.m. by noises coming from the direction of his garage where his cars were parked. At that time, he and his grandson had been asleep in a trailer next to his house, which was being rebuilt on Brooklyn Avenue in San Diego. When Benitez walked from the trailer to a gate on his property, he saw two men trying to start his Daewoo, which had been parked in front of his garage door but was then in the street. Benitez saw one person sitting in the passenger seat and the other, who was holding a gun, standing by the closed driver's door about 20 feet away from him.
When Benitez asked the man with the gun where he was taking the car, the man replied that the person who used to drive the car owed him money and he was going to take the car. When Benitez then told the man the car was his, the man walked around the car to within nine or 10 feet of Benitez, pointed the gun at his chest and asked if he wanted to die for the car. The man then asked Benitez for the car keys. After refusing the man's request several times, Benitez finally agreed to get the keys from his pants hanging in the trailer because of the man's threats to kill him then or at another time.
Although the car was registered to Benitez's wife, her stepson had driven the car up until a week before the incident.
The man then followed behind Benitez as he walked through the fence gate toward the trailer. When Benitez reached the trailer and pulled the door open, he turned to see the man standing behind him pointing the gun at his head, which frightened him. When Benitez entered the trailer to get his car keys, which were in his trousers at the back part of the trailer, the man came "in just a few steps from the door"; about two feet into the trailer. Benitez gave the man the car keys at the entrance of the trailer, closing the door and grabbing the telephone to call 911 as soon as the man left.
In the 911 call, the audiotape of which was played for the jury, Benitez gave a description of the suspects, the car that was taken from his property, his address, and a summary of his encounter with the gunman. Benitez also specifically told the 911 dispatcher that the suspect "followed me [into] the house and he took the key" for the car. Both patrol officers and air support were directed to the crime scene.
Responding police officers talked with Benitez and then transported him to where a suspect was detained in a police car. Benitez identified the man in the car as the person who had taken his car keys and car at gunpoint. At trial, Benitez identified Zaragoza as the man with the gun on the night of June 14, 2005.
San Diego Police Officer David Moya, who had arrived at Benitez's trailer in response to a request for a Spanish speaking officer, testified on direct examination that Benitez was shaken and distraught when questioned about the incident. Essentially, Benitez told Moya the same thing he had related in court and that the man, later identified as Zaragoza, had come from the driver's side of his car to within an arm's distance and "brandished a chrome handgun at his face." That man told Benitez "that he was taking the car as payment, and that he wanted the car keys. Mr. Benitez feared for his life and told him that he'd give him the car keys. They walked back into the trailer and Mr. Benitez grabbed the car keys and gave them to the suspect."
On cross-examination, Moya explained about a dirt area inside the gate leading to Benitez's trailer and a step used to go inside the trailer, saying that Benitez had only said that Zaragoza had walked him to the trailer and had remained at the threshold on the step leading into the mobile home while Benitez obtained the keys to his car that were just inside the home. Moya clarified that "in order to get from the street to the [threshold] step, the person with the gun would have to walk [through] that dirt area."
At some point during the interview with Benitez, Moya was notified that a suspect had been detained at a certain location and drove Benitez there to view the man who was sleeping in the back seat of a police patrol car. The suspect had been caught and placed in the police car after a police helicopter unit had observed Benitez's stolen car being pushed along a street near the crime area and directed responding ground officers to the vehicle. When San Diego Police Officer Daniel Smyth came upon the car, its sole occupant got out of the driver's side and started running. When the man did not heed Smyth's commands to stop, Smyth gave chase through a residential area, catching the man after he ran behind a house, jumped a four-foot chain link fence and ran into an alley. After turning the man over to other officers who placed him in the patrol car, Smyth retraced the steps taken from the car during the chase and found a loaded semiautomatic pistol in a gutter in front of a residence near the stolen car. Smyth, as well as the other officers, noticed that the suspect had alcohol on his breath and appeared intoxicated. The man was detained for about 30 minutes before Moya brought Benitez to the patrol car for a curbside lineup.
A member of the helicopter crew testified at trial about observing the car and two males pushing it, who walked away before patrol cars got to the area. The crew member had activated cameras on the helicopter, which videotaped the events on the ground while he was in communication with the police officers responding to the area. The videotape was played for the jury at trial.
Moya stated that he informed Benitez on the way to the curbside lineup that a suspect had been detained and had read him an admonishment that advised him he was not obligated to identify anyone. In addition to positively identifying the man in the police car as the individual who had stolen his car and pointed the gun in his face, Benitez also identified the handgun that had been found by Smyth as the one that had been used by the suspect during the incident. The suspect, who was then identified as Zaragoza, was booked into jail, and the gun and Benitez's car, with its contents, which included tools scattered inside its interior, were impounded as evidence. Subsequent testing of the firearm, a projectile from the magazine of the firearm, and two screwdrivers found in the car turned up negative for any usable fingerprints.
Defense Case
A San Diego Police Department field technician with the robbery unit, who had processed Benitez's car at the impound facility for latent prints, testified he did not find any latent prints on the exterior of the car and that the one found in the interior of the car was not usable. A recorded police message regarding Zaragoza being too inebriated to stand outside the police car for the curbside line up was also played for the jury.
Zaragoza did not testify in his defense, which, as argued by his counsel during closing, was based on misidentification and Zaragoza's intoxication the night of the incident. Basically, Zaragoza did not dispute that he was at the scene of the crime. Rather he argued he was not the man with the gun who had threatened Benitez that night, maintaining that he was intoxicated when he happened upon the other men who were with the Daewoo in the street and he was merely trying to help them start the car. In support of his defense, counsel pointed out the discrepancies in Benitez's various descriptions of the suspect regarding his height, distinctive facial hair, which was not mentioned, and clothing. Counsel stressed that because no footprints had been found in the dirt going to Benitez's trailer, there was no physical evidence to show that Zaragoza was the person who had walked onto the property. Counsel also noted that the man with the gun took the car keys and that neither the other men with the car or the keys were found.
The jury found that Zaragoza was the person who had committed the instant crimes against Benitez.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Because Zaragoza contends there was insufficient evidence to support the element of entry for his residential robbery and burglary convictions and the element of taking from the "person or immediate presence" for his carjacking conviction, we have reviewed the facts adduced at trial in full and in the light most favorable to finding those elements, drawing all inferences in support of such findings. (People v. Silva (1988) 45 Cal.3d 604, 625; People v. Johnson (1980) 26 Cal.3d 557, 576.) We resolve his challenges based upon the entire record and determine whether there is substantial direct or circumstantial evidence of the existence of each of those elements, which the jury necessarily found in support of the convictions. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11; Johnson, supra, 26 Cal.3d at p. 577.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)
In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements [of each conviction challenged] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's verdicts]," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
With these rules in mind, we address each of Zaragoza's challenged convictions in turn.
A. Counts 1 and 3: Residential Robbery and Burglary
Zaragoza was convicted of first degree robbery in count 1 and residential burglary in count 2. Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) A robbery that is "perpetrated in an inhabited dwelling house," or as in this case, an inhabited trailer, is considered "robbery of the first degree." (§ 212.5, subd. (a).) The crime of burglary is committed when a person enters any building, including a house or trailer, with intent to commit larceny or any felony, and is likewise of the first degree when the house or trailer entered is an "inhabited dwelling." (§§ 459, 460.)
Here, Zaragoza only challenges the sufficiency of the evidence to support the element of entry for both his first degree robbery and burglary convictions. As to such element, " '[a]ny kind of entry, complete or partial, . . . will' suffice. [Citation.] All that is needed is entry 'inside the premises' [citation], not entry inside some inner part of the premises." (People v. Valencia (2002) 28 Cal.4th 1, 13.) Where the outer boundary of a building or premise is not self-evident, its outer boundary generally "includes any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization." (Id. at p. 11.)
Zaragoza does not directly raise the issue of whether the step leading into the trailer is part of the outer boundary of the trailer.
Zaragoza specifically argues that although Benitez testified he entered into the trailer about two feet when Benitez went inside to get his car keys, the fact Officer Moya testified on cross-examination that Benitez said he had not entered the trailer, but rather had waited on the step going inside the trailer while Benitez obtained the keys contradicts Benitez's testimony and negates the essential element of entry. Zaragoza relies on People's exhibit 4 entered into evidence at trial that shows the step leading to the motor home in which Benitez was living inside the gate of his property as evidence that Moya's testimony casts doubt on that given by Benitez thereby creating reasonable doubt as to whether he actually entered into the trailer. Zaragoza further asserts the jury could not arbitrarily disregard Moya's cross-examination testimony and use Benitez's testimony to support a finding that he entered the inhabited trailer.
In essence, Zaragoza is asking us to reweigh the evidence, which we cannot do. As noted above, any inconsistency in the testimony of witnesses is solely for the triers of fact who are the judges of the credibility of the witnesses. (Evid. Code, § 312; People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.) '' 'It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the . . . jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.' [Citations.]" (Id. at p. 1259.)
Zaragoza concedes that Benitez testified that he entered the inhabited trailer when Benitez went inside to get his car keys for him. The 911 tape also played for the jury included Benitez's statements to the dispatch operator that the suspect with the gun had come inside the trailer. Moreover, Moya's direct testimony was consistent with Benitez's version of the events regarding Zaragoza's entry into the trailer. Zaragoza has simply not shown how Benitez's trial testimony that Zaragoza stood a few steps inside the trailer when he went to get his keys was inherently improbable or how finding credence in Benitez's testimony would shock the moral sense of this court. Clearly, a reasonable jury could find Benitez a credible witness and believe on the evidence presented that Zaragoza entered his trailer while he retrieved his car keys. The jury was properly instructed on the element of entry necessary for both the residential burglary charge and the first degree robbery charge. (CALJIC Nos. 9.42, 14.50, 14.51.) We presume the jury followed such instructions when considering the totality of the evidence before finding all the elements for each crime, including entry into an inhabited trailer, were proven beyond a reasonable doubt. Zaragoza's speculation that the jury arbitrarily overlooked Moya's testimony and disregarded the instructions is just that--pure speculation.
In sum, we conclude that sufficient evidence supports the element of entry for Zaragoza's counts 1 and 3 convictions.
B. Count 2: Carjacking
Zaragoza was convicted of carjacking in count 2, which is the "felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).) Zaragoza claims the evidence was insufficient to support the element that he took the car from the person or immediate presence of Benitez. We disagree.
The evidence showed that Benitez's car had been parked near his garage and trailer before it was moved to the street in front of Benitez's property. At that time, Benitez awakened, went outside and confronted Zaragoza who was standing near the car. Zaragoza walked around the car to within nine or 10 feet of Benitez, pointed the gun at him and asked if he wanted to die for the car. Zaragoza then asked for the keys to the car and followed Benitez into his trailer to obtain them. The jury was instructed under CALJCI No. 9.46 that " '[i]mmediate presence' means an area within the alleged victim's reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property." On this evidence and the instructions given, the jury could reasonably find that Zaragoza took possession of Benitez's car by threatening him and demanding his car keys at gun point while Benitez was within observation and close proximity of his car near his property.
Contrary to Zaragoza's arguments otherwise, the victim of a carjacking need not be actually physically present in the vehicle or touching the vehicle when the taking occurs. (People v. O'Neil (1997) 56 Cal.App.4th 1126, 1131; People v. Medina (1995) 39 Cal.App.4th 643, 650-651.) Similar to the situation in O'Neil where the defendant was in the process of backing the victim's truck away from the victim's property when he was confronted by the victim who had been in his residence when the defendant first started taking the vehicle, the victim here confronted Zaragoza while he was trying to get his car away from his property and then exerted force and fear to persuade the victim to give him the keys to the car to complete the taking of the car. (O'Neil, supra, 56 Cal.App.4th at p. 1132.) "Assuming, defendant's initial taking of the car constituted a mere vehicle theft, that theft became a carjacking once defendant resorted to the use of fear to retain possession of the [vehicle]." (Ibid.) Because Zaragoza had not driven the car away to a place of safety before being confronted by Benitez, Zaragoza's use of force and fear to obtain the keys from Benitez while the car was within his view and proximity, the "immediate presence" element for carjacking was sufficiently satisfied. Substantial evidence supports Zaragoza's count 3 conviction.
II
INEFFECTIVE ASSISTANCE OF COUNSEL
Alternatively, Zaragoza contends his trial counsel's failure to point out to the jury in closing argument that portion of Officer Moya's cross-examination testimony about Benitez telling him that Zaragoza had not entered the trailer when he obtained the car keys constituted ineffective assistance of counsel with regard to his first degree robbery and burglary convictions. We disagree.
"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Moreover, "[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Here, the record is silent on why Zaragoza's counsel did not alert the jury to any contradictory statements Benitez may have made to Moya regarding Zaragoza's entry into the trailer that he now claims was misconduct. As the People note, the record reflects that the defense in this case was misidentification. Essentially, the defense argued that Zaragoza, who lived in the neighborhood where the crimes took place, was not the person who had the gun and took Benitez's car that night, but rather was an intoxicated person who tried to help several men whose car would not start. In this regard, defense counsel had strenuously cross-examined Benitez and several police officers regarding the conflicting descriptions given of the suspect who had purportedly committed the crimes. Counsel specifically quizzed Benitez on his testimony that the perpetrator had been taller than him, when Zaragoza was shorter; that he had not mentioned any facial hair, when Zaragoza had both a mustache and a goatee; that he gave conflicting testimony about what the suspect had worn that night; and that he said he assumed he was being taken to identify the perpetrator when the police transported him to the curbside line-up. Counsel also argued that there was no physical evidence to show that Zaragoza had walked onto the property across the dirt portion to reach the trailer. Given the defense that Zaragoza was not the perpetrator, there appears to be a tactical reason or satisfactory explanation for counsel not to explore the inconsistency in Moya's cross-examination testimony that Benitez had told him the perpetrator had only been on the threshold step leading into the trailer when Benitez had gone inside to retrieve his car keys for the suspect; i.e., not to dilute his defense that he was not the perpetrator. In light of these circumstances, a reasonably competent attorney would not be remiss in not stressing the inconsistencies in Moya's testimony about what Benitez had told him about the entry of the perpetrator into his trailer.
However, even if there could be no satisfactory explanation for counsel's failure, as noted in the above discussions, on this record Zaragoza cannot show that a different result was reasonably probable absent counsel's purported omission. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Watson (1956) 46 Cal.2d 818, 836.) As noted above, more than sufficient evidence via Benitez's testimony, the 911 tape and Moya's direct examination testimony supports the jury's implied finding that Zaragoza entered Benitez's trailer. We therefore reject Zaragoza's claim of ineffective assistance of counsel on appeal.
III
BLAKELY AND CUNNINGHAM
At sentencing, after considering its notes from the trial, the probation officer's reports in the current case as well as those in the two probation revocation cases regarding an earlier assault with a deadly weapon or by means of force likely to cause great bodily injury and unlawful intercourse with a minor, the statement in mitigation and arguments of counsel, the trial court found that the probation officer's recommendation of a total 33-year term should be followed. Before imposing that sentence, the court reviewed Zaragoza's criminal history, finding such included extreme violence during his young adult life as evidenced by his prior convictions and admitted alcoholism and gang membership, and denied his motion to strike the strike. Then turning to the sentence in this case, the trial judge found Zaragoza ineligible for probation and stated:
"In aggravation I have considered [California Rules of Court, rule] 421(a)(8). . . . [¶] [Rule]421(b)(4), the defendant was on two separate grants of formal probation at the time he committed this offense. [¶] [Rule] 421(b)(2), his criminal acts are increasingly serious. And I notice he threatened his girlfriend's parents, and that's serious behavior in that matter. Although . . . the conviction was not for violence, the threat was a violent kind of behavior. [¶] In this case I consider the aggravation in the crime itself was particularly vicious because the gun was put so close to Mr. Benitez's head. That wasn't necessary. Mr. Benitez would have been completely overpowered by any use of that weapon, however far away from him. He couldn't do anything about it, and he would have had to turn over the keys. But that gun was put right up to his head, and it wasn't necessary. The defendant is a documented gang member. [¶] And I considered all of that. I think any one or two, certainly, of those factors that I've indicated in aggravation alone would be sufficient to raise the term to the upper term. [¶] And I see basically no factors in mitigation at this time. I don't see anything that says to me that he has led a law-abiding life or will likely do so in the future."
All rule references are to the California Rules of Court.
Consequently, the court imposed the upper term of nine years doubled for the strike for a total of 18 years for the count 2 carjacking offense as the principal term in this case.
In his opening brief on appeal, Zaragoza contended the court's imposition of the upper term for count 2 violated his federal constitutional rights to proof beyond a reasonable doubt and a jury trial under Blakely, supra, 542 U.S. 296, even though he recognized we were bound to follow our Supreme Court's holding in People v. Black (2005) 35 Cal.4th 1238 (Black I) that Blakely did not invalidate the California Determinate Sentencing Law (DSL) as to the choice of an upper term sentence. (Black I, supra, at p. 1244.) While Zaragoza's appeal was pending, the United States Supreme Court issued its decision in Cunningham, supra, 127 S.Ct. 856, which overruled Black I and struck down the DSL on precisely the grounds urged by Zaragoza in this appeal. As that court stated, "Contrary to the Black [I] court's holding, our decisions from Apprendi [v. New Jersey (2000) 530 U.S. 466(Apprendi)] to [United States v.] Booker [(2005) 543 U.S. 220 (Booker)] 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, 127 S.Ct. at p. 871, fn. omitted.) In so holding, the high court again reaffirmed Apprendi's bright-line rule, that had been reiterated in both Blakely and Booker, that "[e]xcept 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.' [Citation.]" (Cunningham, supra, 127 S.Ct. at p. 868.)
In the respondent's brief, the People conceded that Cunningham generally precludes a trial court from finding facts to impose an upper term sentence and that the middle term is the statutory maximum for a valid sentence in California in the absence of jury found aggravating facts, but argued Zaragoza had forfeited his claim by failing to object below under Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, or the right to a jury trial. Nonetheless, the People argued there was no Cunningham violation in this case because the jury trial right does not extend to an aggravating circumstance based on Zaragoza's criminal record, citing the Almendarez-Torres recidivist exception (Almendarez-Torres v. United States (1998) 523 U.S. 224, 246 (Almendarez-Torres)) and a single aggravating circumstance is sufficient to render Zaragoza eligible for the upper term (People v. Osband (1996) 13 Cal.4th 622, 728-729), which together provides the trial court with the statutory authority to impose the upper term under the Sixth Amendment. The People thus posited that because the court had the authority to impose the upper term, it could find other aggravating facts in evaluating whether to impose the upper term regardless of whether they were found by a jury beyond a reasonable doubt without violating the holding of Cunningham, supra, 127 S.Ct. 856.
However, before we could resolve the matter on appeal, our Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), in which it reconsidered its holding in Black I, supra, 35 Cal.4th 1238, in light of the Cunningham decision, concluding, consistent with the prosecutor's argument in this case, that the existence of "a single aggravating circumstance" renders a defendant eligible for the upper term, thus making the upper term the "statutory maximum" in cases where at least one aggravating fact has been shown in a manner consistent with the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 813.) The court specifically stated 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, supra, 530 U.S. 466 and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.)
In a companion case decided the same day, our Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), found the defendant's failure to object to the upper term sentence on Sixth Amendment grounds did not constitute a forfeiture of the issue on appeal because the sentencing occurred, as in this case, after Black I, supra, 35 Cal.4th 1238, and before Cunningham, supra, 127 S.Ct. 856, rendering any objection to the upper term sentencing procedure futile. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) The court in Sandoval, however, found that because there were no factors in aggravation that satisfied the Sixth Amendment right to jury established under Blakely to make the defendant eligible for the upper term as there had been in Black II, supra, 41 Cal.4th 799, the trial court committed error, which must then be analyzed under the "harmless beyond a reasonable doubt standard" of Chapman v. California (1967) 386 U.S. 18, 24. (Sandoval, supra, 41 Cal.4th at pp. 837-838.) When the court did so in that case, it found the error prejudicial and set out the procedure for resentencing consistent with the Legislature's March 30, 2007 amendment of section 1170. (Sandoval, supra, at pp. 843-852.)
We conclude that as in Sandoval, supra, 41 Cal.4th 825, an objection would have been futile in this case and reject the People's argument that Zaragoza's objection to the imposition of the upper term has been waived. However, in reaching the merits, we conclude that the analysis in Black II, supra, 41 Cal.4th 799, is dispositive of that claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, as in Black II, the trial court relied on at least one aggravating factor that rendered the defendant "eligible for the upper term sentence." (Black II, supra, 41 Cal.4th at p. 812.) Specifically, the court found the fact that Zaragoza's adult convictions were numerous and increasing in seriousness (rule 4.421(b)(2)) was a circumstance in aggravation warranting imposition of the upper term. The same aggravating factor was found to be sufficient in Black II to support an upper term eligibility because it falls under the Almendarez-Torres exception for recidivist factors. (Black II, supra, 41 Cal.4th at p. 818.) In finding this so, the court reasoned:
"The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. . . . This type of determination is 'quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.' [Citation.]" (Id. at pp. 819-820.)
Because at least one of the aggravating circumstances on which the trial court here relied was shown by means sufficient to satisfy the Sixth Amendment, Zaragoza was eligible for the upper term and the court was fully within its discretion to select the upper term without violating his right to a jury trial. No Blakely/Cunningham error is shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.