Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA311875, Craig E. Veals, Judge.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
In an amended information, the People charged defendant Eric Darnell Cook with the attempted murder of Howard Washington (Pen. Code, §§ 187, subd. (a), 664; count 1), assaulting Dorothy Cook with a firearm (§ 245, subd. (a)(2); count 2), possession for sale of phencyclidine (Health & Saf. Code, § 11378.5; count 3), making criminal threats against Dorothy Cook (§ 422; count 4), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 5) and possession of a firearm by a felon with prior convictions (§ 12021, subd. (a)(1); count 6).
All further statutory references are to the Penal Code unless otherwise noted.
In count 1, it was further alleged that the attempted murder was committed willfully, deliberately, and with premeditation and that defendant personally and intentionally discharged a firearm which proximately caused great bodily injury and death to the victim (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm (§ 12022.53, subd. (b)). In counts 2 and 4, it was alleged that defendant personally used a firearm (§ 12022.5, subd. (a)). Counts 2 through 6 alleged that at the time the offenses were committed, defendant was released from custody, on bail or on his own recognizance in case number BA310663 and case number SA061920 (§ 12022.1). As to all counts, it was alleged that defendant suffered two prior strikes (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony conviction (§ 667, subd. (a)), and served two prior prison terms (§ 667.5, subd. (b)).
Prior to the evidentiary portion of the trial, defendant, as to count 6, admitted his felon status resulting from a December 1997 conviction for robbery in Santa Clara County Case No. 193857. After the People rested their case, and with regard to counts 3 and 4, defendant admitted that he had been released from custody on bail or on his own recognizance in case numbers BA310663 and SA061920 at the time he committed the offenses within the meaning of section 12022.1.
After the jury reached a verdict, but before the verdict was read in open court, defendant admitted that he had suffered eight prior felony convictions for robbery in Santa Clara Case No. 193857. The court made sure defendant understood that his admission would subject him to an indeterminate term of 25 years to life in state prison if he were convicted of any of the felonies for which he currently was on trial.
A jury found defendant guilty as charged in counts 2 through 6 and further found true the firearm allegations in counts 2 and 4. The jury found defendant not guilty of count 1, attempted murder. The trial court thereafter sentenced defendant to state prison for a total term of 35 years to life.
Defendant appeals, contending (1) that admission of Howard Washington’s statements that defendant previously supplied him with phencyclidine (PCP) and had sold PCP was error under the due process clause of the Fifth and Fourteenth Amendments and Evidence Code section 352; (2) the trial court prejudicially erred in failing to instruct the jury as to the law regarding accomplice liability; and (3) imposition of the upper term sentences on counts 3, 5 and 6, as well as the upper term enhancements on counts 2 and 4, violated defendant’s federal constitutional rights to a jury trial, proof beyond a reasonable doubt and due process. We conclude there is no merit to defendant’s contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Although the jury did not convict defendant of attempted murder, we set forth the evidence pertaining to this count as it is relevant to a resolution of an evidentiary challenge raised on appeal.
On the night of October 15, 2006, Howard Washington (Washington) sustained multiple gunshot wounds and was taken to the hospital. On October 25, Los Angeles Police Detective David Garrido went to the hospital to interview Washington. Washington was unable to speak because he had a “trachea [tube]” in his throat, but he was alert, coherent and able to communicate. Detective Garrido asked Washington if he understood him, and Washington nodded his head up and down to signify that he understood. When the detective asked Washington if he knew who shot him, Washington again nodded his head up and down. The detective then showed Washington a photographic lineup comprised of six pictures and asked Washington if any of the individuals depicted in the lineup shot him. Using a suction utensil, Washington pointed at picture number three, a picture of defendant. When Detective Garrido asked Washington if he was pointing at photograph number three, Washington “adamantly nodded his head up and down yes.” Although Detective Garrido would normally have asked the person viewing the lineup to circle the picture and to write his or her initials, the date and a statement, Washington was not in the condition to do so.
On June 4, 2007, Los Angeles Police Detectives Farell and Yoshida interviewed Washington. The interview, which was recorded, was played for the jury.
During the interview, Washington stated that he recognized defendant as a mutual acquaintance. They both used to “hang out” with the Rollin’ 30s gang. Washington never had an argument or problem with defendant.
Washington recalled that on the night of the shooting, he and a man named Anthony were in Washington’s wife’s car. Washington did not remember being shot, crashing the car, being taken out of the car by paramedics or arguing with anyone that day. Washington did not remember a detective showing him pictures at the hospital. While he remembered selecting defendant’s picture, he could not remember why.
Washington informed the detectives that he conducted business with defendant regarding PCP. Defendant’s business involved credit cards and “selling Sherms,” a term referring to PCP. Washington denied having any problems with defendant in their dealings. When asked if he had purchased “Sherms” from defendant, Washington said defendant gave them to him.
At trial, Washington testified that he had been shot a total of six times, in the face, head, back and hand. He remembered waking up in the hospital and being treated for mental health issues and diabetes, in addition to his gunshot wounds.
Washington did not remember talking to Detective Garrido or another detective at the hospital about the shooting. He also could not remember looking at a photographic lineup or being asked to identify the shooter.
Washington admitted that he had known defendant for about a year but denied having any business transactions with him. Washington further acknowledged that he was a longtime user of PCP and that, in October 2006, he used the drug daily. Washington also smoked marijuana and tobacco. Washington acknowledged that he got drugs from defendant but could not remember if that included PCP.
Counts 2 & 4: Assault with a Firearm & Criminal Threats
Dorothy Cook (Mrs. Cook) is defendant’s mother. Following an incident that occurred at her home, defendant was arrested. During a tape-recorded interview with police, Mrs. Cook stated that on the evening of September 14, 2006, she was on her prayer line when defendant called her. When Mrs. Cook explained that she could not get off of her prayer line, defendant responded angrily, after which Mrs. Cook hung up on him.
The following day, Mrs. Cook was home with defendant’s baby and the baby’s mother, Tammy, when defendant arrived. Defendant had a towel wrapped around his hand, which he put to Mrs. Cook’s head. He then told his mother that he should “blow” her brains out. Tammy said defendant was upset and that she would take him and calm him down. When defendant took the towel off his hand, Mrs. Cook saw a gun.
Mrs. Cook’s trial testimony differed significantly from the statement she gave to the police. Most significantly, she denied that she actually saw a gun, and she claimed to have been drinking alcohol on the day of the incident.
Counts 3, 5 and 6: Search of Hutchins’ Residence
Rachel Hutchins (Hutchins) is defendant’s girlfriend. On November 1, 2006, the police executed a search warrant at her family’s residence in Los Angeles. Defendant and Hutchins were in Hutchins’ bedroom at the time. Hutchins’ parents also were at home.
The police found a.30 caliber rifle with two loaded magazines in the basement and 33 vials of PCP in a walk-in closet near the rear bedroom. Of these, 7 vials were in a shoe box and 26 vials were in a Nestle hot chocolate canister. Also inside the canister was a syringe, which dealers use to measure the amount of PCP to be placed into a vial. The police discovered a loaded handgun in a blue cooler covered with clothing. Defendant’s driver’s license, Department of Corrections identification card and mail addressed to defendant were found in the bedroom. The police seized $290 from defendant. Following the search, the police arrested defendant and Hutchins.
The 26 vials found in the hot chocolate canister contained 28.9 milliliters of PCP. The seven vials recovered from the shoe box contained six milliliters of PCP.
Detective Farell interviewed Hutchins at the police station after she waived her Miranda rights. The interview was videotaped.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
The videotape of the Hutchins’ interview was played for the jury.
During the interview, Hutchins felt sick and was scared that she would have “nowhere to go” because her family would be upset with her.
Hutchins, who grew up with defendant’s brother, had been dating defendant for a little over one year. According to Hutchins, defendant sometimes stayed with her at her house. Defendant was a member of the Rollin’ 30s but did not “gang bang.” Hutchins viewed a picture of Washington and confirmed that she had seen him once or twice with the Rollin’ 30s.
Hutchins told the detectives that she knew there was PCP in her bedroom, in that she saw defendant bring it into her room. When she told him he had to move it the night before, defendant said he would. Hutchins denied that the PCP was hers and she denied selling drugs. She also did not want defendant selling drugs. Hutchins denied any knowledge of the gun found in her bedroom. Hutchins had told defendant that she did not want any weapons in her room.
Hutchins did not know if defendant used PCP but said he might. Hutchins described defendant as “real secretive.” She never saw defendant with a gun.
At trial, Hutchins testified under a grant of immunity. She explained that defendant sometimes spent the night with her at her house. When the police executed the search warrant, Hutchins and defendant were in her bedroom. Hutchins denied knowing there was PCP in her bedroom or that defendant kept PCP in her bedroom, explaining that she told Detective Farell that defendant kept PCP in her bedroom because the police threatened to take her parents to jail.
Detective Farell testified that neither he nor Detective Garrido coerced Hutchins to make her statements during the videotaped interview. The detectives did not threaten her or her family.
Forensic DNA analyst and expert, Jody Hrabal, compared defendant’s DNA taken from an oral swab with a swab from the handle of the revolver recovered during the search. The profile from the gun handle revealed a mixture of at least two individuals, with defendant included as a potential contributor to the mixture. No conclusions could be made as to the donor of the DNA profile obtained from the trigger and cylinder release.
Los Angeles Police Detective Frank Lyga testified in the capacity of an expert with regard to PCP and its possession for sale. When given a hypothetical mirroring the facts of this case, Detective Lyga opined that the person possessing the PCP possessed it for purposes of sale. This opinion was based on the quantity, the packaging and the syringe. The detective explained. “Each one of those bottles they contain roughly five milliliters or five doses of PCP. And the sales those doses are usually dosed out in an eye dropper, but that syringe without a needle would work just as well. And the dose is one drop on average of $10 to $20 depending on where you are in the city. And that drop or dose would last the average user somewhere between 24 hours, around 24 hours.”
Detective Lyga further explained that a “Sherman cigarette is like a small or mini cigar.” A “Sherm” refers to a cigarette dipped in PCP.
DISCUSSION
A. Admissibility of Washington’s Statements
Prior to opening statements, the court and counsel discussed the admissibility of Washington’s statements that defendant sold PCP. Defense counsel objected to these statements on the grounds that they lacked foundation and were more prejudicial than probative under Evidence Code section 352. The trial court overruled defendant’s objections, which defendant renews on appeal.
The trial court’s determination that a foundation has been laid for the admission of evidence is reviewed for an abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197.) The necessary foundation for admissibility of evidence need only be proven by a preponderance of the evidence. (People v. Anthony O. (1992) 5 Cal.App.4th 428, 433.) If substantial evidence supports the trial court’s exercise of discretion to admit the evidence, the reviewing court must uphold it. (Id. at pp. 433-434.)
Washington testified that he and defendant were friends or acquaintances. Washington further testified that he previously had obtained drugs from defendant and that defendant had given him PCP for free. During an interview by police, Washington stated defendant was an acquaintance with whom he did business. Defendant’s business involved credit cards and selling “Sherms,” which refers to PCP cigarettes. Washington also told police that defendant previously had given him PCP. This evidence sufficiently supports the trial court’s determination that a proper foundation had been laid for the admissibility of Washington’s statements regarding defendant and PCP. No abuse of discretion has been established. (People v. Williams, supra, 16 Cal.4th at pp. 196-197; People v. Anthony O., supra, 5 Cal.App.4th at p. 433.)
We also reject defendant’s challenge under Evidence Code section 352, which grants the trial court discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice....” Defendant has failed to convince us that Washington’s statement, that defendant gave him PCP on a prior occasion, was more prejudicial than probative with respect to the issue of whether defendant possessed the PCP recovered from the Hutchins’ residence with intent to sell.
For the first time on appeal, defendant also challenges the admissibility of Washington’s challenged statements under Evidence Code section 1101. Defendant has forfeited this challenge by virtue of his failure to object on this specific ground below. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 431.) Anticipating our conclusion, defendant contends that his trial counsel’s failure to object to the admissibility of Washington’s statements pursuant to Evidence Code section 1101, rendered counsel’s representation less than adequate.
In order to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that a determination more favorable to defendant would have been reached in the absence of counsel’s omission. (Strickland v. Washington (1984) 466 U.S. 668, 690 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Holt (1997) 15 Cal.4th 619, 703.) When a reviewing court can dispose of a claim of ineffective assistance on lack of prejudice grounds, it may do so without first determining if counsel’s representation was deficient. (Strickland, supra, at p. 697.) We follow that course here.
Assuming for argument’s sake that Washington’s statements were inadmissible under Evidence Code section 1101, it is not reasonably probable that the jury would have acquitted defendant if the evidence had been excluded. The record contains more than ample evidence that defendant possessed the PCP with the requisite intent to sell. Detective Lyga opined that the PCP was possessed for sale based on the quantity, packaging, and the existence of a syringe, which sellers use to measure the quantity of PCP to be placed into a vial. Defendant has failed to demonstrate that he was denied the effective assistance of counsel due to counsel’s failure to object to the admissibility of Washington’s statements under Evidence Code section 1101. (Strickland v. Washington, supra, 466 U.S. at p. 690; People v. Holt, supra, 15 Cal.4th at p. 703.)
B. Accomplice Liability
Defendant next contends that Hutchins was an accomplice and that the trial court’s failure to instruct the jury on principles of accomplice liability was prejudicial error. We disagree.
When the evidence shows that a prosecution witness may be an accomplice, the trial court has a sua sponte duty to instruct the jury on the principles of law governing accomplice testimony, including the need for corroboration. (People v. Tobias (2001) 25 Cal.4th 327, 331; CALJIC Nos. 3.10 through 3.19.) Section 1111 provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” This statutory provision defines an accomplice “as one who was liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Accord, People v. Sully (1991) 53 Cal.3d 1195, 1227.) An accomplice, thus, is a person who may attempt to minimize his or her own culpability by shifting the blame to the defendant. (Tobias, supra, at p. 331.)
During the search of Hutchins’ family’s home, PCP and a firearm where found in the closet of the bedroom Hutchins shared with defendant. Although Hutchins’ trial testimony given under a grant of immunity favored defendant in certain particulars, statements she made to police during a post-arrest videotaped interview, which was played for the jury, were quite damaging to defendant. During that interview, Hutchins admitted knowledge of the PCP’s presence but explained that it belonged to defendant who brought it into her home. She informed the police that she asked defendant to remove it and that he knew better than to sell drugs around her.
Error in failing to give the jury instructions on accomplice liability will be deemed harmless if there is ample evidence corroborating the accomplice’s testimony. (People v. Arias (1996) 13 Cal.4th 92, 143.) Assuming for the sake of argument that the trial court committed instructional error in failing to instruct the jury on principles of accomplice liability in this case, the error was not prejudicial, in that there was sufficient corroborating evidence connecting defendant to the PCP and the weapon, apart from Hutchins’ statements to the police and her trial testimony. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
With regard to the firearm, a forensic DNA analyst testified that defendant was a potential contributor to the DNA found on the handle of the gun. This gun was recovered from the same closet in which the PCP was found. Furthermore, the closet was located in the room in which defendant was sleeping and in which his driver’s license and mail were found. This is independent evidence establishing defendant’s guilt on counts 3 and 5 without regard to Hutchins’ statements and testimony. The court’s failure to give accomplice instructions was therefore harmless.
C. Sentencing
As previously noted, the trial court sentenced defendant to state prison for a total term of 35 years to life. Specifically, the court sentenced defendant on count 2 to 25 years to life, plus the upper term of 10 years for the firearm enhancement (§ 12022.5). On count 3, the court sentenced defendant to a concurrent term of 10 years, consisting of the upper term of five years doubled to ten years pursuant to the “Three Strikes” law. On count 4, the court sentenced defendant to 25 years to life, plus the upper term of 10 years for the firearm enhancement (§ 12022.5), and stayed the sentence pursuant to section 654. On count 5, the court sentenced defendant to a concurrent term of eight years, consisting of the upper term of four years doubled to eight years under the “Three Strikes” law. The sentence on count 6, the upper term of three years doubled to six years, was stayed pursuant to section 654.
In sentencing defendant, the trial court stated: “There are factors in aggravation that the court should take into consideration with respect to the appropriate imposition as to the [section] 12022.5 allegation and they are as follows: [¶] The crime involve [sic] great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness. [¶] And the defendant’s prior convictions as an adult or adjudications of commission of crime as a juvenile are numerous or of increasing seriousness. [¶] And defendant has engaged in the pattern of violent conduct which indicates a serious danger to society. [¶] And finally, the defendant’s prior performance [on] probation or parole was unsatisfactory. [¶] And obviously under Cunningham and other judicial pronouncements, the court can consider for the imposition of the high term, the defendant’s previous[] criminal history. And therefore, will impose the high term as to the gun allegation on count 2.”
When sentencing defendant on count 5, the court stated: “And as to count 5, likewise the court strikes one of the two strike offenses, imposes the high base term of four years for the reasons previously set forth as factors in aggravation. And doubles that to eight years of concurrent sentence to the sentence imposed on the other counts.”
Citing Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), defendant contends that imposition of upper term sentences on counts 3, 5 and 6 and imposition of upper term firearm enhancements on counts 2 and 4, violated his federal constitutional rights because none of the aggravating factors relied on by the court to impose the upper term sentences and enhancements were found true by a jury beyond a reasonable doubt or admitted by defendant. We first discuss the propriety of the upper term sentences imposed on counts 3, 5 and 6.
In Cunningham, decided in January 2007, the nation’s high court held that California’s procedure for selecting the upper term sentences under then extant section 1170, subdivision (b), violated the defendant’s Sixth and Fourteenth Amendment right to a jury trial, in that it gave “to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence.” (Cunningham, supra, 549 U.S. at p. 274 [127 S.Ct. at p. 860].)
The version of section 1170, subdivision (b), invalidated in Cunningham provided: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.... In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.”
Thereafter on March 30, 2007, Governor Arnold Schwarzenegger signed into law Senate Bill No. 40 (SB 40), which amended section 1170, subdivision (b). Under this newly amended statutory provision, a court must exercise its discretion when selecting among the lower, middle or upper terms, but an additional factual finding is no longer required to impose an upper or lower term.
“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.”
On July 19, 2007, the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825, judicially reformed the former sentencing law to conform to the new law. (Id. at p. 857.) Thus, when defendant was sentenced on September 19, 2007, the law in effect was the new version of the statute rather than the former version under review in Cunningham. Inasmuch as the upper term became the “‘statutory maximum’” within the meaning of Cunningham, the trial court properly could consider any relevant fact when exercising its discretion to impose the upper term. (Sandoval, supra, at pp. 843-852; People v. Wilson (2008) 164 Cal.App.4th 988, 991-992.)
Defendant maintains that the retroactive application of SB 40 violated the ex post facto clauses of the federal and state constitutions, in that his crimes were committed prior to the effective date of SB 40. We disagree.
In People v. Sandoval, supra, 41 Cal.4th 825, the California Supreme Court exercised its judicial authority and adopted the procedure enacted by the Legislature for all Cunningham resentencings. (Id. at pp. 845-846.) In so doing, it rejected the defendant’s ex post facto claim, finding that ex post facto laws applied “only to statutory enactments, not to judicial decisions.” (Id. at pp. 852-855.) In light of its “limited reformation,” it declined to decide whether SB 40 itself could apply to cases remanded for resentencing. (Id. at pp. 845-846, 849.) We need not reach the issue either in light of the high court’s judicial reformation of the prior sentencing law in Sandoval. Surely, it would be a waste of time to require trial courts to apply the old, invalidated law in cases involving crimes committed prior to March 30, 2007, the date of SB 40’s enactment, and then on remand for resentencing to apply the judicially reformed version of the old law under Sandoval. For these reasons, we conclude the trial court properly imposed the upper term sentences on counts 3, 5 and 6.
With regard to the upper term sentencing enhancements imposed on counts 2 and 4, we conclude that they too were properly imposed but for a different reason. The statutory provision governing the imposition of enhancements, namely section 1170.1, subdivision (d), has not been legislatively or judicially reformed. As we observed in People v. Lincoln (2007) 157 Cal.App.4th 196 at page 205 “[t]he urgency legislation... did not change section 1170.1, subdivision (d), which establishes the same presumption of the middle term for enhancements that the former section 1170, subdivision (b) did for sentencing on criminal offenses.... This provision suffers from the identical constitutional infirmities identified by the United States Supreme Court in Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856], and is similarly unconstitutional. The Legislature has taken no step to amend this provision to render it compliant with the Sixth Amendment, and the California Supreme Court did not reform it in Sandoval, supra, 41 Cal.4th at pages 843 through 852.”
Subdivision (d) of section 1170.1 provides that “[w]hen the court imposes a prison sentence for a felony pursuant to Section 1170..., the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements. If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation, and state the reason for its sentence choice, other than the middle term, on the record at the time of sentencing....”
In People v. Lincoln, supra, 157 Cal.App.4th 196, we further observed: “We cannot profess to know whether the Legislature failed to remove the presumption of the middle term with respect to enhancements deliberately or inadvertently. While it may be that the omission was inadvertent in the rush to respond to the Supreme Court’s decision in Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856], we cannot presume that to be the case in view of the fact that the Legislature has taken no action to remedy any oversight in the intervening months since the urgency legislation was enacted. When the Legislature’s intent is not clear, judicial reformation of a statute is not an option. (Sandoval, supra, 41 Cal.4th at p. 844....) The Sandoval reformation does not address sentencing on sentence enhancements punishable by three terms and in the absence of legislative action, we cannot extend the reformation to this case.” (Lincoln, supra, at pp. 205-206.)
With that having been said, we reject defendant’s assertion that imposition of the upper term enhancement contravened his constitutional rights under Blakely, Apprendi and Cunningham. In imposing the upper term enhancements, the trial court, among other things, relied upon defendant’s criminal history and the fact that defendant had numerous prior convictions. A defendant’s prior conviction may be considered by the trial court in sentencing without submitting the prior conviction to a jury. (People v. Lincoln, supra, 157 Cal.App.4th at p. 206; accord, Apprendi, supra, 530 U.S. at p. 490; People v. Sandoval, supra, 41 Cal.4th at pp. 836-837.)
In this case, the People alleged that defendant had two prior strike convictions. Yet he admitted to having suffered eight prior robbery convictions. The trial court clearly was entitled to rely on defendant’s admission, which also establish that he had numerous prior convictions, in imposing the upper term enhancements under section 12022.5. To the extent the trial court engaged in additional fact finding as to other aggravating circumstances, there has been no Sixth Amendment violation. As the California Supreme Court noted in People v. Black (2007) 41 Cal.4th 799, “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 a jury trial.” (Id. at p. 812.) The same reasoning warrants the conclusion that the trial court properly imposed the upper term enhancements on counts 2 and 4.
Defendant contends the California Supreme Court incorrectly interpreted Apprendi, Blakely and Cunningham when it decided People v. Black, supra, 41 Cal.4th 799 and People v. Sandoval, supra, 41 Cal.4th 825. Defendant correctly acknowledges that we are bound by Black and Sandoval under principles of stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but raises the issue nonetheless in order to exhaust his state remedies and to preserve the issue for further federal review.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.