Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Kern County. Ct. Nos. BF112743B & BF112743C Gary T. Friedman, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Gilbert Cabrera.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Jose Cabrera.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendants Gilbert Cabrera (Gilbert) and Jose Cabrera (Jose) were each convicted of one count of robbery and one count of attempted robbery. In addition, numerous enhancements related to Gilbert’s history of prior criminal convictions were found true. Defendants appeal, claiming the trial court erred in denying their Wheeler/Batson motion and their new-trial motion based on juror misconduct. Additionally, Jose alone claims the trial court erred in imposing an upper and consecutive term based on facts not found by the jury beyond a reasonable doubt. We affirm.
The motion was made by defense counsel after the People dismissed a Hispanic juror from the venire. (See People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.)
FACTS
In the early morning hours of November 26, 2005, Pablo Gama and his cousin Julio Nevel had just left Club Extreme and were walking to their car. There were four individuals standing by a PT Cruiser automobile, including Gilbert and Jose. Gilbert and Jose approached Gama and Nevel. Gilbert demanded their wallets. As he did so, he had his hand in his pants simulating that he had a weapon. Nevel got out his wallet and Gilbert slapped it out of his hand. Gama said he would not give the defendants anything. After Gama said this, Jose punched him in the face. Gama still did not give up his wallet.
Club Extreme was also know as La Movida.
Gama saw a narcotics officer’s vehicle pass by. He flagged down the officer. As Gama was flagging down the officer, Gilbert said to Nevel, “let’s work something out.” Gilbert asked Nevel to tell the officer that the person who took his wallet ran off; in return Gilbert would return Nevel’s wallet.
Nevel’s wallet was now under the PT Cruiser. Gilbert told Nevel to pick up his wallet. Nevel refused and told Gilbert to pick it up. Gilbert got the wallet from under the car and gave it to Nevel.
Bakersfield police officer David Chase was driving in front of Club Extreme when he was flagged down by an individual. This individual stated he and another individual had been robbed by some other individuals who were still present. Officer Chase asked for backup officers. Chase detained everyone in the area who was involved. He detained three people who were pointed out as being involved in the robbery. Gilbert and Jose were two of those individuals.
Defense
Natalie Vargas, Erica Coronado, and Sabrina Aguirre testified that they were with Gilbert at Riley’s, a bar in Kern County, until about 1:30 a.m. on November 26, 2005. Natalie and Erica left in their own cars. Sabrina drove Gilbert to his house and dropped him off. She left and went to her home.
Thomas Martinez, the third individual arrested with Jose and Gilbert as a participant in the robbery, testified that he went with Jose to Club Extreme on the evening of November 25, 2006. Martinez was driving his cousin’s PT Cruiser. They stayed at the club until closing, approximately 1:50 a.m. on November 26, 2005. Martinez walked toward his car and was talking to women. Jose said he was going to call Gilbert for a ride because Martinez had been drinking and should not be driving. Martinez got in the car and waited. He saw the police arrest Jose and then, when Gilbert arrived, he (Gilbert) was put in handcuffs. Martinez was asked to get out of the car. He was also arrested.
Jose Onsurez received a call from Gilbert between 1:30 and 2:00 a.m. on November 26, 2005. Onsurez was asleep. Gilbert asked Onsurez to take him to pick up Jose from Club Extreme. Onsurez agreed to do so and picked up Gilbert. As they approached Club Extreme, Onsurez saw a police officer talking to Jose. Gilbert got out of the car to see what was going on with Jose. Onsurez drove around the block. He saw that Gilbert was being searched. Onsurez left.
Defendant Jose testified on his own behalf. He said he went to Club Extreme with Thomas Martinez in a PT Cruiser driven by Martinez. He left the club about 1:40 a.m. and had agreed to call for a ride because he had alcohol in his system.
He tried calling Gilbert, but Gilbert’s telephone did not work properly. Gilbert called Jose back, and Jose asked Gilbert to call Onsurez. Gilbert called Jose back and said Onsurez was bringing him to the club.
As Jose was walking, Gama spit on him. Jose told Gama to watch where he was spitting. Gama and Nevel approached Jose. One of them had his hands in his pockets and the other one was swinging his hands around. Jose told them not to approach him like that. When they got close, Jose threw a punch at Gama. Gama and Nevel walked away. Jose went and talked to some women. Jose saw Gama flagging someone down. Jose was then hit with a spotlight and told to turn around and put his hands on the wall. Police officers searched him and asked him where the wallet was. He was told that he was being arrested for a robbery.
Telephone bills were produced showing calls to and from Gilbert from the telephone Jose claimed was his, although the telephone bill was in name of Jose’s father.
The owner of Club Extreme testified that he had video surveillance cameras covering areas outside his club. These tapes were erased every two weeks. The police never asked him for tapes from the evening of November 26, 2005.
Rebuttal
Bakersfield police officer Eric South testified that he was dispatched to the report of a robbery at Club Extreme. He interviewed Jose. Jose said he had no involvement whatsoever with a robbery, had no contact with the two victims, and did not know the two victims. He did not say anything about someone spitting on him.
DISCUSSION
I. Wheeler/Batson Motion
Defendants contend the trial court erred when it denied the Wheeler/Batson motion made by defense counsel after the People dismissed a Hispanic juror from the venire. Defendants argue that the prosecutor’s striking of four Hispanic jurors out of seven challenges, combined with the lack of any clear reason why the prosecutor used her seventh challenge to a Hispanic juror, established a prima facie case of discrimination and the trial court erred in ruling otherwise.
“The use of peremptory challenges to excuse prospective jurors based on race violates the federal and state Constitutions.” (People v. Adanandus (2007) 157 Cal.App.4th 496, 500.) When a defendant makes a claim that the People have improperly excused prospective jurors, the trial court determines the matter utilizing the three-step process outlined in Batson. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)
Here, the trial court did not proceed past the first step in the procedure because it found defendants had not made out a prima facie case. We review a trial court’s finding that a prima facie case of group bias has not been shown by considering the entire record of voir dire. “‘“[W]e examine the record for evidence to support the trial court’s ruling. Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with ‘considerable deference’ on appeal. [Citations.] If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm.”’” (People v. Crittenden (1994) 9 Cal.4th 83, 116-117.)
The defendants made their motion pursuant to Wheeler/Batson after Juror No. 554367, a prospective juror with a Hispanic surname, was peremptorily challenged by the People. Counsel for defendant Gilbert Cabrera told the court that he noted the People had challenged several Hispanics. He stated, “I would reference those peremptory challenges, as well, but there appeared to be no non-ethnic reason to excuse Miss (554367), in particular, that I could observe.” Gilbert’s counsel asked the court to make a prima facie finding of group bias.
Counsel for Jose joined in the motion, stating that he believed the district attorney was systematically excusing Hispanics from the jury. He noted that both defendants are Hispanic males. Counsel for Jose listed four Hispanic prospective jurors dismissed by the prosecution, Nos. 751791, 435217, 724994, and the final challenge that triggered the motion, No. 554367. Counsel for Jose stated, “Four Hispanics out of seven peremptories is a lot. I’d ask the Court to make a prima facie case and request justification from Miss Singh [the deputy district attorney].”
The court found “that no evidence has been produced sufficient to permit the Court to draw an inference that discrimination has occurred. This is a juror, my understanding, who indicated that when her husband turned her in she had a less than favorable experience with police. Based on all of the overall factors, deny the request for a Wheeler motion and find there’s no prima facie case that’s been raised.”
Defendants’ argument fails for several reasons. We begin by looking at the reasons given by defense counsel for both defendants as establishing a prima facie case. Both counsel pointed to the fact that four out of seven of the prosecutor’s peremptory challenges were to Hispanic jurors. Other than Hispanic surnames, there was no showing on the record to identify which prospective jurors were, or were not, Hispanic. For the sake of argument, we will proceed on the assumption that prospective jurors with Hispanic surnames were Hispanic. In People v. Cornwell (2005) 37 Cal.4th 50 the defendant argued that group bias was shown when the prosecutor challenged one out of two African-American prospective jurors. The California Supreme Court found that this did “not support an inference of bias, particularly in view of the circumstance that the other African-American juror had been passed repeatedly by the prosecutor from the beginning of voir dire and ultimately served on the jury.” (Id. at p. 70.) Similarly, in People v. Farnam (2002) 28 Cal.4th 107 the Supreme Court found that an assertion that four out of the first five peremptory challenges were to Black prospective jurors and a small minority of jurors on the panel were Black was insufficient to support a prima facie showing. (Id. at pp. 136-137; accord People v. Box (2000) 23 Cal.4th 1153, 1188-1189.)
The fact that four out of seven of the prosecutor’s peremptory challenges were of Hispanic jurors is not enough in itself to establish a prima facie case. The only other reason given by defense counsel to justify his motion was that there was no nonethnic reason to support the challenge to prospective juror No. 554367. Such an ambiguous reason carries little weight. Other than race, defense counsel did not discuss or offer any other circumstances relevant to the inquiry “‘such as the prospective jurors’ individual characteristics, the nature of the prosecutor’s voir dire, or the prospective jurors’ answers to questions.’” (People v. Yeoman (2003) 31 Cal.4th 93, 115.)
Although defense counsel at trial and counsel on appeal fail to mention the general makeup of the panel as a whole and the makeup of the jurors already present in the box when the prosecutor accepted the jury before excusing No. 554367 (who replaced a juror excused by the defense), this was a relevant factor that should have been discussed by defense counsel. At the time the prosecutor accepted the jury as comprised, and then at the time the prosecutor challenged No. 554367, there were four jurors in the box who had Hispanic-sounding names; Nos. 751922, 550757, 545233, and 571483. These four jurors sat as sworn jurors for the case. At the outset of jury selection, before any jurors were excused for cause, excused for hardship, or excused peremptorily by the People or the defense, the panel of 75 prospective jurors included at least 25 jurors with Hispanic-sounding names. Viewed in this context, the prosecutor’s peremptory challenges of four Hispanic jurors do not support an inference of group bias.
We note that two of the three alternate jurors have names that indicate they are Hispanic: Nos. 714227 and 780441. The third alternate juror, without a Hispanic surname, and No. 714227 were later seated on the jury.
Defendants argue that the trial court erred when it stated that the questioning of No. 554367 revealed she had a less than favorable experience with law enforcement. Defendants claim that the record does not support this finding by the court. We disagree. The following questioning took place:
“Q. [THE COURT] Ever have an unpleasant experience with law enforcement?
“A. Not really.
“Q. What do you mean by that, ma’am?
“A. Well, not -- not traumatic where
“Q. Well, how about a non-traumatic experience with law enforcement.
“A. Yeah.
“Q. What’s that?
“A. I was arguing with my husband and
“Q. You were what?
“A. I was arguing, me and my husband were arguing, and he called the police on me.
“Q. And he called the police on you?
“A. Yes.
“Q. And what happened?
“A. He was trying to have me arrested and they were just you both need to cool down, so -- I didn’t go.
“Q. Were you arrested?
“A. No.
“Q. Everything cooled down and they left?
“A. Yes.
“Q. Would that affect your ability to be fair and impartial?
“A. No.”
Giving considerable deference to the trial court, which we are required to do, the above exchange is open to the interpretation that No. 554367 had an unpleasant experience with law enforcement that did not rise to the level of a traumatic experience. In addition to No. 554367’s less than favorable experience with law enforcement, No. 554367 stated that she knew some of the clerks who work for the public defender’s office. This disclosed a reason other than racial bias for the prosecutor to challenge No. 554367.
We also note there were overwhelming reasons for the prosecutor’s peremptory challenges to the other three Hispanic jurors. No. 751791 had been charged with voting out of her district. She stated that the district attorney was not a nice person and was extremely rude. No. 435217 had been previously charged with the crime of touching two junior high girls. He was found not guilty. He described the circumstances as very unpleasant. No. 724994 worked for the Department of Motor Vehicles, which he described as being closely related to law enforcement and which might affect his ability to be fair. His mother had been held at gunpoint and almost robbed. He used to be a court interpreter and he had worked with the public defender’s office. Thus, the first three challenges of Hispanic-surnamed jurors by the prosecution were more than sufficiently supported by reasons for a prosecutor to peremptorily challenge them.
Defendant failed to show a prima facie case. The trial court did not err in denying the Wheeler/Batson motion.
II. Motion for New Trial
Defendants jointly filed a motion for new trial based on juror misconduct. Their motion was supported by a declaration from juror No. 653114. In her declaration, No. 653114 stated she offered the declaration out of her concern that defendants did not get a fair trial as a result of activities of certain jurors. She declared she heard other jurors say things to “the effect: ‘Well this isn’t going to take too long.’” In addition, she said jurors made comments such as, “‘He is still in jail. He didn’t make bail, he must have done something.” Comments about defendants’ need for private counsel were made “to the effect of: ‘If they are so innocent why did they have to hire attorneys as opposed to getting free attorneys through the Courts’ and ‘It doesn’t matter how we vote, those lawyers were still going to get paid. So what is the difference.’”
No. 653114 stated the foreperson was surprised he was selected because he had been the victim of a robbery. She claimed he stated something “to the effect of: ‘Why would I vote not guilty?’”
In addition to the above comments, No. 653114 asserted punishment was discussed by the jury. She said comments about punishment were met with responses “to the effect of: ‘Well even if we vote guilty, the judge could just give them the time served, or probation, or at the most one to two years. It doesn’t mean that much if we go guilty.’”
Defendants claimed that No. 653114’s declaration showed three areas of misconduct: (1) jurors prejudged the case prior to its submission to them; (2) the foreperson concealed his bias against defendants during jury selection; and, finally, (3) the jurors considered inappropriate facts and circumstances in arriving at their decision.
Based on the above declaration and motion for new trial, the trial court sent letters to all of the jurors asking if they had an objection to disclosure of their personal information so the parties could contact them. Several jurors filed objections. The parties were given access to addresses and telephone numbers of the jurors who did not object to the disclosure of their personal information.
The People filed opposition to the motion for new trial. They filed several declarations from jurors, as well as a supplemental declaration from No. 653114. In her new declaration No. 653114 stated she now believes defendants received a fair trial. In addition, she stated she believed that punishment was discussed in the deliberation room after the verdict forms had been signed and while the jurors were waiting for the judge to call them into the courtroom.
The jury foreperson, No. 833821, filed a declaration stating the jurors were frustrated by delays but he did not hear any comments similar to the comment claimed by No. 653114 regarding how long the trial was going to take. No. 833821 stated a juror spoke about the defendants’ custody status after the verdict was read but the jurors had been sent back to the jury room to fill our new verdict forms. The foreperson declared that someone might have mentioned that “the defendant” had a court appointed attorney, but no one said anything about the lawyers being paid, etc., as claimed by No. 653114. No. 833821 stated he was surprised he was left on the jury but his experience as a robbery victim did not influence his ability to be objective and he never said, “Why would I not vote guilty?” The foreperson stated some jurors were concerned about punishment and he participated in a brief conversation about punishment, but he explained to the other jurors that the jury needed to worry about only the guilt portion.
The forms as to Gilbert were correct. After the verdict was read for Gilbert, he said, “Take me back to jail.” The court then discovered the verdict forms for Jose also contained Gilbert’s name. The court sent the jury back to the jury room to sign new verdict forms containing only Jose’s name.
No. 673635 filed a declaration. She stated she did not hear any of the statements attributed to jurors by No. 653114 with the exception that some juror mentioned defendants’ custody status after the jurors were sent back to the jury room to sign corrected verdict forms, after Gilbert asked the bailiff to take him back to jail. Another juror also mentioned that “the defendant” had a court appointed attorney.
No. 780797 filed a declaration similar to No. 673635’s. She agreed that jurors spoke about the custody of defendants after the jurors were sent back to the jury room and during this same period of time one or more jurors mentioned the defendants had private attorneys. She said they did not discuss punishment.
No. 739970 stated she heard one juror say, “this will not take long.” She also heard a juror comment that one defendant was not able to leave for lunch and his case might be his third strike. She recalled one juror mentioning the defendants had private attorneys.
No. 780441 stated she heard a juror say that this was not going to take long. She heard one juror, a female African-American juror, stating the defendant must have done something wrong, otherwise the jury would not be there.
The court denied the motion for new trial based on jury misconduct. It stated, “I do not find that the jury engaged in any misconduct, an alleged prejudging of the case, concealing bias, or find any evidence of prejudicial facts involving the reaching of the decision, and find that there is no evidence to show that even if there was some degree of misconduct, that that in any way prejudiced the result as reached by the jury in this case. In other words, there is no evidence to show that there was a substantial likelihood that any jurors’ vote was influenced by any claims of misconduct.
“And also the overwhelming strength of the People’s case is another factor which demonstrates that were there misconduct, if any, it was not prejudicial.
“Therefore, based on the totality of the evidence, the declarations received, the points and authorities discussed and read by counsel and the Court, and our review of our trial notes, I find that there is insufficient evidence to grant the motion for new trial. Therefore, it’s respectfully denied.”
“When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these questions and its rulings will not be disturbed absent a clear abuse of discretion. [Citation.]” (People v. Perez (1992) 4 Cal.App.4th 893, 906.)
Defendants argue the trial court erred when it denied their motion for new trial based on juror misconduct. They assert the comment about the matter not going to take long demonstrated that jurors prejudged the case. Next, they claim the evidence showed that No. 833821 prejudged the case when he stated, “Why would I not vote guilty?” Defendants contend prejudicial misconduct occurred because the jury considered punishment.
With the exception of the discussion of punishment by the jury, we find that no misconduct occurred. The comment that this case was not going to take long does not demonstrate a prejudgment by the jury; it shows only that the juror(s) thought the trial presentation was not going to take long. The declaration by No. 653114 that this statement was made did not provide any context except that others, including herself, expressed a desire for the trial to be over with. Given the facts that the case involved a very brief event resulting in only two charges, with eyewitnesses, and with the police on the scene almost immediately, such a comment by itself does not demonstrate prejudgment and merely shows an assessment of the length of the trial.
The asserted question by one juror why defendants were there if they had not done something wrong, while misconduct, had no effect because that juror was dismissed from the panel during the trial before the jury began deliberating.
The trial court did not have the jurors testify at the hearing, but held the hearing based on the affidavits. The affidavits were in conflict on the question of whether the foreperson, No. 833821, said, “Why would I vote not guilty?” No. 653114 said the foreperson made such a statement, No. 833821 denied making such a statement. No. 833821 stated during voir dire that he had been the victim of a robbery at gunpoint. He also stated it would not affect his ability to be fair and impartial. Thus, No. 833821, was forthcoming during voir dire about his prior experience. For the purposes of argument, we will accept No. 653114’s assertion that No. 833821 made such a statement. Again No. 653114’s assertion is not made in any context. It is an ambiguous type of question and may have been made during deliberations when such a comment may have been rationally related to a discussion of the evidence and No. 833821’s determination during deliberations that he would not at that point vote not guilty. Based on the ambiguity of the comment and the dearth of evidence to give it any context concerning the proceedings, the trial court could correctly find that this comment did not constitute misconduct.
We note the defendants did not request a hearing with testimony from the jurors.
As previously set forth, the jury returned their verdicts to the courtroom. The court read the guilty verdicts concerning Gilbert. Gilbert responded by asking the bailiff to take him back to jail. The trial court then observed that the forms relating to Jose also contained Gilbert’s name. The court sent the jury back to the deliberation room and had them wait for new forms to be prepared. The new forms were sent in and signed by the foreperson, finding Jose guilty.
It was agreed by several of the jurors that punishment was discussed, including a comment that this might be “the defendant’s” third strike. This was misconduct. Several jurors stated that these discussions occurred during the interim time after they had returned their initial verdicts and were waiting in the jury room to sign the corrected verdict forms for Jose. Other references to punishment in the declarations were not pinpointed as to time. Thus it was not contradicted that discussions of punishment occurred after the verdicts had been determined. In addition, the foreperson stated that punishment was discussed but he told the jurors not to concern themselves with punishment. The presumption of prejudice from jury misconduct “‘may be rebutted … by a reviewing court’s determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.’ [Citations.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1425.) The timing of the discussion(s) and the foreperson’s admonishment to the jurors to not concern themselves with punishment were sufficient to rebut the presumption of prejudice.
The trial court did not err in denying the motion for new trial.
III. Cunningham Error
The trial court pronounced sentence for Jose and imposed the upper term of five years for the robbery and a consecutive sentence of eight months (one-third the midterm) for the attempted robbery. In pronouncing the upper term for the robbery, the court found one circumstance in mitigation--that Jose’s prior performance on juvenile probation was satisfactory. The court found in aggravation that Jose’s prior convictions as an adult, and sustained petitions in juvenile delinquency proceedings, are numerous and that he was on misdemeanor probation when the crime was committed. The court imposed consecutive sentences because the crimes involved separate acts of violence or threats of violence.
Jose contends the trial court erred in imposing the upper term and consecutive sentence based on facts not found by the jury beyond a reasonable doubt.
In Cunningham v. California (2007) 549 U.S. ___[127 S.Ct. 856] the United States Supreme Court held that Cunningham’s right to trial by jury was denied under California’s determinate sentencing law (DSL) because the judge, not the jury, found the facts that resulted in an upper term sentence. Petitioner Cunningham was convicted of continuous sexual abuse of a child. Under California’s DSL, Cunningham faced the lower term of six years, the mid term of 12 years, or the upper term of 16 years. In order to impose the upper term, the judge had to find one or more factors in aggravation. The trial judge found six aggravating factors, including victim vulnerability and that Cunningham was a serious danger to the community based on his violent conduct. Cunningham’s lack of a prior record was found as the sole factor in mitigation. The trial court found that the aggravating factors outweighed the one mitigating factor and sentenced Cunningham to the upper term. The appellate court upheld his sentence. The California Supreme Court denied Cunningham’s petition for review, having recently decided in People v. Black (2005) 35 Cal.4th 1238 (Black I) “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence … under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
The United States Supreme Court granted review and disagreed with the California Supreme Court’s decision in Black I. “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].)
The California Supreme Court applied Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). Black II held, “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s DSL, and concluded that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely [Blakely v. Washington (2004) 542 U.S. 296], the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’” for Sixth Amendment purposes. (Id. at p. 813.) “[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.)
Black II further explained: “[U]nder the DSL the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The [trial] court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Black II, supra, 41 Cal.4th at p. 815.)
As to factual circumstances in Black II, the defendant was convicted of one count of continuous sexual abuse of a child (§ 288.5) and two counts of lewd and lascivious conduct with a child (§ 288, subd. (a)). The jury found true the special allegations that the defendant committed continuous sexual abuse by use of force, violence, duress, menace, and fear of immediate and unlawful bodily injury; he had substantial sexual conduct with a victim under the age of 14 years; and he committed specific sexual acts with more than one victim. The trial court imposed upper and consecutive terms based on the nature, seriousness, and circumstances of the crime and the defendant’s lengthy criminal record. (Black II, supra, 41 Cal.4th at pp. 806-807.)
Black II found that the trial court’s imposition of the upper term did not violate Cunningham “because at least one aggravating circumstance … was established by means that satisfy the requirements of the Sixth Amendment” and thus made the defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 816.) “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [Apprendi v. New Jersey (2000) 530 U.S. 466] 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.)
The trial court’s reliance on the nature, seriousness, and circumstances of the crime as an aggravating circumstance did not violate Cunningham because the jury found the force and violence special allegation true beyond a reasonable doubt. “Because the jury found this allegation to be true, the ‘maximum sentence’ that could be imposed ‘solely on the basis of the facts reflected in the jury verdict or admitted by the defendant’ [ citation] was the upper term.” (Black II, supra, 41 Cal.4th at p. 817.) As for the defendant’s criminal history, Black II noted that “[t]he United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Id. at p. 818.) Black II held the prior-conviction exception includes “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,” such as the defendant’s prior convictions being numerous and of increasing seriousness. (Id. at p. 819.)
Jose’s contention that the trial court erred in imposing the upper term based on facts not found by a jury beyond a reasonable doubt fails. The opening brief in this case was filed after the United States Supreme Court decision in Cunningham and before the California Supreme Court’s decision in Black II was final. While acknowledging in his reply brief that this court is bound by the decision in Black II, Jose argues that those cases are wrongly decided.
Black II resolves the issue. The trial court found as one of the circumstances in aggravation that Jose’s prior convictions are numerous. The right to a jury trial does not apply to this circumstance, and this one constitutionally valid circumstance allows the court to properly impose an upper term. The trial court did not err when it imposed the upper term for the robbery conviction.
In addition, Cunningham does not apply to the imposition of consecutive sentences. Black II reaffirmed Black I’s holding that the imposition of consecutive sentences based on facts not found by the jury did not violate a defendant’s Sixth Amendment rights. “‘[A] jury’s verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense.’ [Citation.]” (Black II, supra, 41 Cal.4th at p. 821.) Black II noted that consecutive sentences were not addressed in Cunningham, and there was nothing in Cunningham to undermine Black I’s analysis of that issue. (Black II, supra, at pp. 820-823.)
DISPOSITION
The judgments are affirmed.
WE CONCUR: CORNELL, J., GOMES, J.