Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F06905818 Bruce M. Smith, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Rachelle A. Newcomb and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.
Before Ardaiz, P.J., Vartabedian, J. and Cornell, J.
OPINION
A jury convicted appellant Chad Archambeault of evading an officer with willful disregard for safety (Veh. Code, § 2800.2, subd. (a); count 1), unlawfully driving or taking a vehicle (§ 10851, subd. (a); count 2), receiving stolen property consisting of a motor vehicle (Pen. Code, § 496d, subd. (a); count 3), and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1); count 4), and he admitted having served a prior prison term (Pen. Code, § 667.5, subd. (b)). He was sentenced to a total unstayed term of five years eight months in prison, but, because he was found to be addicted or in imminent danger of addition, he was committed to the California Rehabilitation Center (Welf. & Inst. Code, § 3051). He now appeals, claiming that his convictions on counts 2 and 3 must be reversed and his sentence reduced. For the reasons that follow, we will affirm.
Further statutory references are to the Vehicle Code unless otherwise stated.
FACTS
I
Prosecution Evidence
On July 27, 2006, Lynne and Rickey Rapada took their red Jeep Wrangler to Fresno Chrysler Jeep, near Blackstone and Shaw, for repairs. They ended up having to leave the vehicle there over the weekend. While there, the vehicle was kept in a secured lot. On Monday morning, July 31, it was discovered that the lot had been broken into. The gate had been knocked down, and there was a footprint on the roof of one of the cars, as if someone had come over the fence, stepped on the car, and hopped down. The red Wrangler was missing, and the police were notified.
Around 1:30 that afternoon, California Highway Patrol (CHP) Officer Watson saw the Wrangler heading westbound on Olive Drive, just east of Palm Avenue. It was being driven by appellant, who was wearing a white T-shirt.
Watson made a U-turn and pulled in behind the Wrangler, which turned into a gas station parking lot at Palm and Olive. As his partner, CHP Officer Allred, exited the patrol vehicle, Watson saw appellant look at them in the rearview mirror and smirk. Appellant then accelerated rapidly and fled. A pursuit ensued, during which appellant jumped curbs and railroad tracks, reached speeds of approximately 40 miles per hour in residential areas and 70 miles per hour on McKinley, and ran a number of stop signs and at least one red light. Eventually, Watson lost visual contact with appellant.
CHP Officer Royal was turning onto Hedges when he saw the Wrangler stop at the end of the cul-de-sac. Someone exited the driver’s side of the vehicle and ran southbound, on the east side of the credit union located in the cul-de-sac at Hedges and West. Although Royal was unable to get a good view of the person’s face at this time, he subsequently was able to identify him as appellant. Appellant was wearing a white T-shirt, blue jeans, and a dark-colored baseball cap. Royal did not see him carrying anything in his hand. Royal lost sight of him by the credit union.
Lee Xiong was in her office at the credit union when she saw someone walk south past her window. It was a thin White male, wearing a navy blue baseball cap, white T-shirt, jeans, and sneakers. He was holding what appeared to be a handgun. Xiong saw only the person’s profile; at trial, she was 70 to 80 percent sure it was appellant. As Xiong dialed 911, she heard someone running across the roof, heading south. She then saw the person go over the chain link fence on the credit union’s property.
Meanwhile, Royal had parked his vehicle by the chain link fence at the end of the credit union’s parking lot. He and appellant arrived at the fence almost simultaneously. Appellant was still wearing a white T-shirt, jeans, and a dark-colored baseball cap. Royal drew his weapon and ordered him to stop, but appellant jumped the fence and continued southbound. Royal followed, but momentarily lost sight of him. When he regained visual contact, he saw appellant remove his T-shirt and throw it on the ground. Appellant continued out onto Olive Avenue, crossed the street to the stone wall that bordered Roeding Park, and proceeded to light a cigarette.
CHP Officer Turner, who was also involved in the pursuit and identified appellant as the driver of the Wrangler, saw appellant standing in the right eastbound lane of Olive, looking around and lighting a cigarette. Appellant was sweating and appeared surprised to see Turner, who took him into custody. Appellant, who had been wearing a white T-shirt when Turner saw him driving the Wrangler, now was shirtless, but wearing pants and a baseball cap. There were several small, fresh-looking puncture wounds and scrapes on his hands and wrists.
To the south of the credit union, in an open dirt area between the building and the fence, Royal found a Glock replica plastic air pistol. Between the next building and perimeter fence of the neighboring property, officers found a white T-shirt.
Damage to the Wrangler’s steering column was consistent with a car being started without a key. Although the damage was such that a tool would have been needed and no type of tool was found on appellant’s person or in the area where he was detained, a claw hammer was found on the passenger side floorboard of the Wrangler.
II
Defense Evidence
Appellant testified that on July 31, he was looking for a place to use some crystal methamphetamine that he had purchased. As he had heard people were being arrested in Roeding Park, he instead chose a building with an area surrounded by bushes. He jumped the fence to get to the location, injuring his hands in the process. He then proceeded to use his drugs. This fence was not the one by the credit union.
At some point, appellant removed his shirt because of the heat. He then lit a cigarette, jumped back over the fence, and headed back toward Roeding Park. As appellant jumped over the fence, several police cars and motorcycles went by. They turned around and waited for him, and he went over to them when one of the officers motioned him over.
Appellant, who was convicted of a theft-related felony in 2001, denied breaking into Fresno Chrysler Jeep or stealing a vehicle, being near the credit union on July 31, ever being in the stolen Wrangler, or engaging in a high-speed chase with the CHP. According to appellant, he was unable to run due to a car accident the year before in which he had broken his femur, although he could jump a fence by using his good leg to hop and his arms to pull himself up. Appellant further denied possessing the replica Glock firearm. He admitted, however, that the T-shirt recovered by officers on the day in question was his and that he had been wearing it that day until around 1:00 or 1:30 p.m.
DISCUSSION
I
Dual Convictions
Appellant contends he could not properly be convicted of vehicle theft (count 2) and of receiving the same vehicle as stolen property (count 3). Applying People v. Garza (2005) 35 Cal.4th 866 (Garza) to the circumstances of this case, we disagree.
The long-standing common law rule provides that, subject to limited exceptions not applicable here, a person may not be convicted of both stealing and receiving the same property. (People v. Smith (2007) 40 Cal.4th 483, 522; People v. Tatum (1962) 209 Cal.App.2d 179, 183.) This principle is codified in Penal Code section 496, subdivision (a), which provides, in pertinent part: “A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.”
The exceptions exist when the acts of concealing or receiving are completely divorced from the theft, as where the thief disposes of the property and then receives it again in a separate transaction, and when the thief is a coconspirator of the receiver. (People v. Smith, supra, 40 Cal.4th at p. 522, fn. 10.)
These sentences were added to the statute in 1992. (Stats. 1992, ch. 1146, § 1.) References to the 1992 amendment are to the quoted two sentences.
By its terms, section 10851, subdivision (a) criminalizes both the driving of a vehicle without the owner’s permission and the theft of the vehicle. (People v. Allen (1999) 21 Cal.4th 846, 851.) In People v. Jaramillo (1976) 16 Cal.3d 752 (Jaramillo), the California Supreme Court applied the rule that a defendant cannot be convicted of both stealing and receiving, in the context of a conviction for violating section 10851. (Jaramillo, supra, at p. 757.) In that case, the vehicle in question was stolen on August 27, 1972. On September 8 of that year, police found the defendant lying in the car, which was parked, pretending to be asleep. (Id. at pp. 754-755.) The court noted that section 10851 “prohibits driving as separate and distinct from the act of taking” (Jaramillo, supra, at p. 759, fn. 6), and stated: “[W]hen an accused is convicted of [theft], which necessarily requires a finding that the accused intended to steal, he cannot also be convicted of receiving that same stolen property. If, on the other hand, in convicting an accused of a violation of Vehicle Code section 10851, a jury finds that the accused intended only to temporarily deprive the owner of possession for the purpose of driving a vehicle, then the accused may also be guilty of a violation of [Penal Code] section 496 …, if there is other evidence which establishes the elements of that crime – including evidence of the independent theft of the vehicle and the accused’s knowing receipt thereof. When, …, however, the record does not disclose or suggest what specific findings were made in convicting a defendant of a violation of Vehicle Code section 10851 but it nevertheless appears that the fact finder may have found that the defendant intended to steal the vehicle, a second conviction based on a further finding that the defendant received that same stolen property is foreclosed. [Citation.]” (Jaramillo, supra, at pp. 758-759, fns. omitted.)
Subdivision (a) of section 10851 provides: “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without the intent to steal the vehicle, …, is guilty of a public offense .…”
In Jaramillo, there was no direct evidence the defendant either stole or drove the car; the circumstantial evidence was sufficient to sustain a conviction based on taking, driving, or both; and it was not possible to tell from the jury’s verdict which combination of proscribed conduct and intent resulted in the finding of guilt. (Jaramillo, supra, 16 Cal.3d at pp. 757-758, 760.) Because the record permitted an inference, which could not be rebutted, that the jury may have found the defendant was the thief, the defendant could not be convicted of violating both section 10851 and Penal Code section 496. (Jaramillo, supra, at p. 759.)
Under Jaramillo, appellant would be entitled to a reversal of his conviction for receiving stolen property. (See People v. Stephens (1990) 218 Cal.App.3d 575, 587.) Jaramillo is not the end of our analysis, however, as it antedated the 1992 amendment to Penal Code section 496, subdivision (a).
In People v. Strong (1994) 30 Cal.App.4th 366 (Strong), the Court of Appeal construed Jaramillo’s holding in light of that amendment and concluded that the fact the jury may have found the defendant stole the vehicle no longer bars a conviction under Penal Code section 496. Instead, the question post-amendment is whether the jury convicted the defendant of theft of the vehicle, as such a conviction would indeed bar a conviction for receiving or withholding the same property under Penal Code section 496. (Strong, supra, at p. 373.) The court found it conclusively proven that the defendant there drove the stolen pickup; while substantial, evidence that he took the pickup was less conclusive. Thus, while, the evidence was consistent either with driving, or with taking and driving, no reasonable juror could have found taking alone. (Id. at p. 372.) Since, when the defendant was found driving the pickup, the original crime of taking had long been completed (four days had elapsed; the defendant was driving the pickup in an area removed from the location of the theft & was not on a continuous journey away from that place; items belonging to the vehicle’s owner were missing, while items not belonging to her were found in the vehicle), even assuming the defendant stole the vehicle, he committed a second, separate offense by unlawfully driving it, and so his conviction under section 10851 for unlawful driving did not bar a conviction for receiving or withholding the same vehicle on the same date. (Strong, at p. 375.)
The appellate court went on to hold that, assuming the jury should have been instructed that the defendant could not be convicted of taking and receiving the same vehicle, any error was harmless beyond a reasonable doubt. The court reasoned that the defendant was indisputably driving the stolen pickup when he was arrested; moreover, no reasonable juror could have found that he was still engaged in the original taking at that time. (Strong, supra, 30 Cal.App.4th at p. 376.)
A trial court has a sua sponte duty to so instruct. (Strong, supra, 30 Cal.App.4th at pp. 375-376; People v. Black (1990) 222 Cal.App.3d 523, 525; see Judicial Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM No. 3516.) The jury was not so instructed in appellant’s case.
In Garza, supra, 35 Cal.4th 866, the California Supreme Court reexamined the issue, taking into account the 1992 amendment. In part, the court stated:
“Subdivision (a) of Penal Code section 496 (hereafter section 496(a)) defines the crime of receiving stolen property. It also provides that a person who has been convicted of the theft of property may not also be convicted of receiving the same property. This provision codifies a common law rule prohibiting separate convictions of the same person for stealing and receiving the same property. [Citation.]
“Subdivision (a) of Vehicle Code section 10851 (hereafter section 10851(a)), defines the crime of unlawful driving or taking of a vehicle. Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted under section 496(a) of receiving the same vehicle as stolen property. On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete (for convenience, we will refer to this as ‘post theft driving’). Therefore, a conviction under section 10851(a) for post theft driving is not a theft conviction and does not preclude a conviction under section 496(a) for receiving the same vehicle as stolen property.
“The issue here is whether a conviction under section 10851(a) for unlawful taking or driving of a vehicle bars a conviction under section 496(a) for receiving the same vehicle as stolen property when the evidence at trial adequately supported the section 10851(a) conviction on either a taking or a post theft driving theory, the prosecutor argued both the taking and the posttheft driving theories to the jury, the trial court’s instructions did not require the jury to choose between the theories and did not explain the rule prohibiting convictions for stealing and receiving the same stolen property, and the jury’s guilty verdict did not disclose which theory or theories the jurors accepted.
“Consistent with prior Court of Appeal decisions, we conclude that when, as in this case, the evidence is such that it is not reasonably probable that a properly instructed jury would have found that the defendant took the vehicle but did not engage in any posttheft driving, a reviewing court may construe the Vehicle Code section 10851(a) conviction as a conviction for posttheft driving and on this basis may uphold the conviction under Penal Code section 496(a) for receiving the same vehicle as stolen property.” (Garza, supra, 35 Cal.4th at pp. 871-872.)
The Garza court reviewed various opinions, including Strong, supra, 30 Cal.App.4th 366, and People v. Cratty (1999) 77 Cal.App.4th 98 (Cratty), and determined that the crucial issue is whether the section 10851, subdivision (a) conviction is for a theft offense (the taking of the vehicle with the intent to permanently deprive the owner of possession), in which case it is a theft conviction that bars a conviction of the same person for receiving the same vehicle as stolen property; or whether the conviction is for a non theft offense (posttheft driving of the vehicle), in which case there is no bar to dual convictions. (Garza, supra, 35 Cal.4th at pp. 877-878, 881.) In making this determination, the court found itself guided by certain principles, specifically that on appeal, a judgment is presumed correct; the party attacking the judgment must affirmatively demonstrate prejudicial error; and the California Constitution prohibits the setting aside of a judgment absent a miscarriage of justice. (Id. at p. 881.) The court concluded that the defendant did indeed demonstrate error: The trial court erred in not instructing the jury, on its own initiative, that the defendant could not be convicted both of theft and of receiving the same stolen property. (Ibid.) There was no prejudice, however, since the only reasonable inference from the trial evidence was that the defendant had driven the car, while the theft of the vehicle six days earlier was long since complete; hence, it was not reasonably probable that a properly instructed jury would have found the defendant guilty of violating subdivision (a) of section 10851 by stealing the car, but not by posttheft driving. (Garza, supra, 35 Cal.4th at p. 882; see People v. Watson (1956) 46 Cal.2d 818, 836.) Accordingly, the court upheld the convictions under both section 10851, subdivision (a) and Penal Code section 496, subdivision (a) (now Pen. Code, § 496d), by construing the conviction under section 10851, subdivision (a) as a non theft conviction for posttheft driving. (Garza, supra, at p. 882.)
In Cratty, the defendant was arrested while driving a car that had been stolen some eight months earlier, and was subsequently convicted of both receiving stolen property and of violating section 10851, subdivision (a). The Court of Appeal affirmed the dual convictions, reasoning that, because the jury must at least have found that the defendant violated the non theft driving provision of section 10851, subdivision (a), and no reasonable juror could have found he took, but did not drive, the vehicle, it did not matter whether the jury may also have found he stole the vehicle. (Cratty, supra, 77 Cal.App.4th at pp. 101, 103.)
The court distinguished Jaramillo, with its “somewhat different harmless error analysis,” on the ground that Jaramillo was decided before the 1992 amendment of Penal Code section 496. (Garza, supra, 35 Cal.4th at p. 882.)
We find Garza dispositive of the instant matter. Appellant seeks to distinguish the rationale in that case (as well as in Strong & Cratty) on the grounds that here, the prosecutor based his case on the theft portion of section 10851, subdivision (a), with only a “passing reference” to the driving portion; the trial court instructed the jury that count two was for vehicle theft; and the court stayed the sentence for count 3 as an alternative to count 2.
We are not persuaded. Count 2 of the information charged both theft and non theft violations of section 10851, subdivision (a), and the jury was instructed on both forms of the offense. Although the trial court did refer to count 2 as charging vehicle theft at one point, it did so only in context of explaining that if jurors concluded appellant knew he possessed property and concluded the property had been recently stolen, they could not convict appellant of vehicle theft based on those facts alone, but could convict him of vehicle theft if they also found that supporting evidence tended to prove his guilt. Jurors were told that the supporting evidence need only be slight, and that they could consider how, where, and when appellant possessed the property, along with any other relevant circumstances tending to prove his guilt of vehicle theft “as charged in Count 2.” Under the circumstances, the trial court’s reference to vehicle theft in the instruction, and the instruction itself, permitted jurors to convict appellant of theft, but neither required them to do so nor confirms that that is indeed what they did. Similarly, the trial court’s reference, at sentencing, to count 3 as being an alternative charge to count 2 does not establish what the jury did. Indeed, a section 654 stay is appropriate where dual convictions are proper. (Jaramillo, supra, 16 Cal.3d at p. 760, fn. 9.) Significantly, the verdict form recited that the jury found appellant guilty of violating section 10851, subdivision (a), which was described as unlawful driving or taking of a vehicle as charged in count 2 of the information; as we have described, count 2 charged both means of violating the statute. Neither it nor the verdict referred to “vehicle theft.”
We recognize that the prosecutor argued both the taking and driving forms of the section 10851, subdivision (a) violation. We do not necessarily agree that he emphasized the theft more than the posttheft driving, since the most significant charge – evading an officer with willful disregard for safety, as set out in count 1 – was completely dependent upon appellant’s posttheft driving of the vehicle. Moreover, in discussing the elements of count 2 in his argument, the prosecutor explained that he had to prove that appellant took or drove someone else’s vehicle without consent, and that, regardless of whether jurors thought appellant stole the Wrangler from the car dealership, he deprived the owners of possession for a period of time, and that was enough for a conviction on count 2.
It is true, as appellant notes, that the trial court was required to, but did not, instruct the jury that they could not convict him of both taking and receiving the same property. This error was neither prejudicial nor precludes dual convictions, however. Although the evidence was sufficient to uphold a theft conviction, there was no direct evidence that appellant stole the vehicle, and the evidence that he was the actual thief was comparatively weak. By contrast, once jurors rejected appellant’s testimony that he was never in the Wrangler – which the guilty verdicts conclusively establish they did – the evidence of appellant’s posttheft driving was overwhelming and undisputed. Under the circumstances, it is not reasonably probable that a properly instructed jury would have found taking, but not posttheft driving. (See Garza, supra, 35 Cal.4th at p. 882; Strong, supra, 30 Cal.App.4th at p. 372.) Accordingly, appellant’s convictions for violating section 10851, subdivision (a) and Penal Code section 496d, subdivision (a) both can stand. (Garza, supra, at p. 882.)
There was no suggestion the taking was not complete. (See Garza, supra, 35 Cal.4th at pp. 880-881; Strong, supra, 30 Cal.App.4th at p. 375.)
II
Lack of Unanimity Instruction
In a somewhat related argument, appellant says the trial court erred by instructing jurors they could convict him of violating section 10851, subdivision (a) based either on taking or driving the vehicle, but not further instructing that they must unanimously agree in that regard. Respondent acknowledges that appellant may raise this issue despite his failure to request the instruction at trial, but says any error was harmless. We agree.
CALCRIM No. 3500, which was given with respect to count 1, but not count 2, provides: “The defendant is charged with ___ <insert description of alleged offense> [in Count ___] [sometime during the period of ___ to ___]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
“‘It is fundamental that a criminal conviction requires a unanimous jury verdict [citations].’ [Citation.] What is required is that the jurors unanimously agree defendant is criminally responsible for ‘one discrete criminal event.’ [Citation.] ‘[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed … that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.’ [Citation.]” (People v. Thompson (1995) 36 Cal.App.4th 843, 850, italics omitted.)
The “requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.] [¶] On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.]” (Ibid.)
“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.]” (People v. Beardslee (1991) 53 Cal.3d 68, 92.) We assume a charge of violating section 10851, subdivision (a) presents such a situation, since that statute “speaks in the alternative: a person can violate that section by driving or taking a vehicle. The acts constituting driving a vehicle and taking a vehicle are separate and distinct. [Citations.]” (People v. Barrick (1982) 33 Cal.3d 115, 135; Jaramillo, supra, 16 Cal.3d at p. 759, fn. 6; but see People v. Sutherland (1993) 17 Cal.App.4th 602, 618-619 [Pen. Code, § 470 defines offense of forgery in alternative; as forging & uttering are different legal theories under which defendant may be convicted of forgery, no juror unanimity required as to whether defendant’s conduct falls into either or both categories].) We need not give a definitive answer, however, since, under the facts of this case, the result would have been the same had the jury been given the instruction; hence, any error was harmless beyond a reasonable doubt. (People v. Deletto (1983) 147 Cal.App.3d 458, 473.)
While some cases assess the erroneous failure to give a unanimity instruction under the test enunciated in People v. Watson, supra, 46 Cal.2d at page 836 (e.g., People v. Vargas (2001) 91 Cal.App.4th 506, 562), this court has long held that the appropriate measure is the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 (People v. Gary (1987) 189 Cal.App.3d 1212, 1218, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481; People v. Metheney (1984) 154 Cal.App.3d 555, 563, fn. 5).
Appellant denied having anything to do with the stolen Wrangler. Given the lack of direct evidence tying him to the theft, jurors rationally could have rejected his testimony with respect to the driving, and yet been divided concerning his culpability for taking the vehicle. Nevertheless, even assuming some jurors might have had a reasonable doubt about appellant’s culpability as the actual thief and so might have found him guilty of driving, but not of taking, the reverse is not true. As we have noted, the jury’s verdicts conclusively establish it rejected appellant’s testimony. It necessarily follows, from the fact appellant was convicted at all, that jurors believed the prosecution’s witnesses. Since jurors believed the law enforcement witnesses, appellant was clearly guilty of violating section 10851, subdivision (a) by driving the Wrangler. It is inconceivable that a juror would credit the circumstantial evidence that appellant stole the vehicle, but somehow find he did not drive the Wrangler afterward. Accordingly, any error was harmless. (See People v. Riel (2000) 22 Cal.4th 1153, 1199-1200; People v. Wolfe (2003) 114 Cal.App.4th 177, 188; People v. Gordon (1985) 165 Cal.App.3d 839, 855-856, disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765 & People v. Lopez (1998) 19 Cal.4th 282, 292.)
Frazer was itself abrogated on grounds not pertinent to this discussion by Stogner v. California (2003) 539 U.S. 607.
III
Imposition of the Upper Term
The probation officer’s report (RPO) revealed that appellant, who was just under 25 years old when he committed the present offenses, had a juvenile record that dated back to when he was 14 and included the commission of two felonies when he was 16. His adult record consisted of a prior violation of section 10851, subdivision (a), for which he was initially placed on probation and ultimately sent to prison, and two misdemeanors. The RPO further related that appellant was on probation or parole when he committed the present offenses.
At sentencing, appellant did not challenge the RPO’s recitation of his prior record or probation/parole status. In aggravation, the trial court found that the circumstances of the crime itself were serious, and that appellant’s prior performance on probation or parole was unsatisfactory. The court expressly found no mitigating factors, and imposed the upper term on count 2, which it designated the principal term.
Relying on Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant now contends the trial court violated his Sixth Amendment right to trial by jury by imposing an upper-term sentence based on factors not admitted by appellant or found by the jury to be true beyond a reasonable doubt. Prior to appellant’s sentencing, the California Supreme Court undertook an extensive analysis of Blakely, Apprendi, and United States v. Booker (2005) 543 U.S. 220, and concluded that imposition of an upper term sentence, as provided by California law, was constitutional. (People v. Black (2005) 35 Cal.4th 1238, 1244, 1254, 1261 (Black I). Recently, however, the United States Supreme Court overruled Black I in part and held that California’s determinate sentencing law “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.’ [Citation.]” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) The middle term prescribed under California law, not the upper term, is the relevant statutory maximum. (Ibid.)
Because, at the time appellant was sentenced, Black I was binding on the trial court, any objection on Sixth Amendment grounds would have been futile. Accordingly, appellant did not forfeit the claim by failing to object. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
The United States Supreme Court remanded Black I to the California Supreme Court for reconsideration in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II), our state high court held 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 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, at p. 812.) The court explained that “[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence – and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ [Citation.] 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.’” (Black II, supra, 41 Cal.4th at p. 813, fn. omitted.)
The state Supreme Court rejected the argument that, since a trial court cannot impose the upper term unless it considers all aggravating circumstances and determines they justify the upper term and outweigh any mitigating circumstances, a defendant has the right to a jury trial on all applicable aggravating circumstances even if one has been established in accordance with Blakely. (Black II, supra, 41 Cal.4th at p. 814.) The court stated: “The issue to be determined in each case is whether the trial court’s fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Id. at p. 815.) The court concluded: “[I]mposition 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.)
As we have described, the RPO revealed that appellant had a record of criminal conduct and had suffered several convictions. Although the trial court did not expressly rely on the fact of appellant’s prior convictions, one of the circumstances it found in aggravation – that appellant was on probation or parole when he committed the present offenses – necessarily presupposed one or more prior convictions. Because the factor found by the court necessarily arose out of the fact of a prior conviction and was so closely related to the prior conviction or convictions, it brought appellant’s case within the recidivism exception to the jury trial right that consistently has been recognized by the United States Supreme Court. (See Apprendi, supra, 530 U.S. at p. 488; Almendarez-Torres v. United States (1998) 523 U.S. 224, 230, 243, 244.)
The question whether this is a proper interpretation of the prior conviction exception of Almendarez-Torres v. United States, supra, 523 U.S. 224, as set forth in Cunningham, is currently pending before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677, supplemental briefing ordered, February 7, 2007, and a host of other cases.
Since appellant’s criminal history established an aggravating circumstance “that independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term,” “he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence .…” (Black II, supra, 41 Cal.4th at p. 820.) It follows that the trial court did not commit federal constitutional error by referring to the serious circumstances of the present offenses. (Id. at p. 813; compare People v. Sandoval, supra, 41 Cal.4th at pp. 837-838 [6th Amend. rights violated by imposition of upper term sentence where no aggravating circumstance cited by trial court fell with Blakely exceptions of fact of prior conviction or facts established by jury’s verdict or admitted by defendant].) Imposition of the upper term was therefore proper.
Appellant does not contend imposition of the upper term constituted an abuse of discretion under state law.
DISPOSITION
The judgment is affirmed.
Several years later, section 496d was added to the Penal Code to encompass only motor vehicle-related receipt of stolen property. (Stats. 1998, ch. 710, § 1.) We see nothing in the language of, or intent behind, the pertinent statutes that suggests the Legislature did not intend the 1992 amendment to continue to apply to the theft and receiving of a motor vehicle after the enactment of Penal Code section 496d. (See In re Anthony J. (2004) 117 Cal.App.4th 718, 721, 728 [applying elements of Pen. Code, § 496, subd. (a) to juvenile adjudication under Pen. Code, § 496d].)