Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County No. FSB701250, David Cohn, Judge. Affirmed and remanded for retrial on the prior conviction, and resentencing.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robin Derman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, J.
Introduction
Defendant Ronald Lee Guy was convicted of numerous charges, all stemming from an incident in which defendant hit and threatened his former girlfriend, pursued her into a neighbor’s apartment, attacked and threatened the neighbor who tried to intervene, and choked and again hit his former girlfriend. We affirm defendant’s convictions, but remand for retrial on a prior conviction and for resentencing.
Defendant challenges his conviction for burglary. There was substantial evidence of defendant’s specific intent to commit a felony when he entered the neighbor’s apartment, and therefore the evidence was sufficient to support defendant’s burglary conviction.
Defendant argues the trial court erred in failing to instruct the jury regarding a lesser included offense, in providing an incomplete or incorrect instruction regarding burglary, and in failing to provide a unanimity instruction. Defendant also argues the trial court failed to properly respond to the jury’s request for clarification regarding the burglary charge during deliberations. We conclude there was no instructional error; even if the court erred, any error was not prejudicial.
Finally, defendant argues several sentencing errors. As the Attorney General concedes, there was insufficient evidence that one of defendant’s prior convictions was a serious felony, and we remand for retrial of that issue. We also agree that under Penal Code section 654, defendant had a single intent and objective in inflicting corporal injury against the victim, assaulting her, making criminal threats against her, and committing burglary to continue his attack. (All further statutory references are to the Penal Code.) We remand to permit the trial court to resentence defendant in conformity with section 654. Finally, we conclude the trial court’s use of aggravating factors to select the upper base term did not violate defendant’s constitutional protections.
Statement of Facts
Prosecution’s Case-in-chief
Jane Doe dated defendant for four years, lived with him for some period of time, and had a daughter with him. On April 14, 2007, Doe visited defendant at his apartment; they drank alcohol, and got into an argument. Defendant punched Doe in the stomach, and slapped her in the face between eight and 10 times. Defendant ordered Doe to sit or stand in the corner, where he repeatedly kicked, slapped, and punched her. Defendant then pulled out a silver folding knife, and threatened to stab Doe in the neck; at some point, he grazed Doe’s shoulder with the knife.
Doe fled defendant’s apartment and ran into the apartment of neighbors Tommy Cooper and Bridget Roulhac. Defendant followed Doe, and pushed the front door open as Cooper tried to close it. Cooper attempted to intervene, but defendant grabbed him by the neck, told him to stay out of defendant’s business, and threatened to kill Cooper as he pushed him against a wall. Defendant then followed Doe into a bedroom, where he grabbed her by the neck, choked her, and punched her once in the face. Defendant then left the apartment.
When the police arrived in response to a neighbor’s 911 call, Doe was extremely upset and appeared to be scared. Doe told the officers defendant “had just got done jumping on her and beating on her.” The officers attempted to interview defendant, but he was uncooperative and appeared to be intoxicated. A folding knife was found under defendant’s bed. Defendant had no discernable injuries. The police officers who responded to the scene testified Doe’s eye and left cheekbone were swollen. Cooper testified that when Doe came out of the bathroom in his apartment, “[s]he was bruised up bad, bad.” Photographs of Doe taken at the scene were admitted in evidence.
Defense Evidence
Two witnesses contradicted the prosecution’s evidence. Neighbor Paula Jones testified that she saw Doe and defendant drinking before their fight; they were not arguing at that time. Jones talked to Doe shortly after defendant’s arrest; Doe was agitated and upset, but did not appear to have any injuries.
Neighbor Joan Chriswell had a direct view of Cooper’s front door from just outside the front door of her own apartment, where she was standing with her boyfriend the night of the fight. She saw defendant trip while going up the steps to Cooper’s apartment and fall through the partially open front door. Defendant fell against Cooper, and left the apartment after a few minutes. According to Chriswell, defendant remained in her sight during the entire incident and did not come into physical contact with anyone else inside Cooper’s apartment.
Procedural History
Defendant was charged in a first amended information with inflicting corporal injury on a former cohabitant or parent of defendant’s child (§ 273.5, subd. (a) [count 1]); assault by means likely to produce great bodily injury, against Cooper (§ 245, subd. (a)(1) [count 2]); making criminal threats against Doe (§ 422 [count 3]); first degree burglary (§ 459 [count 4]); assault by means likely to produce great bodily injury, against Doe (§ 245, subd. (a)(1) [count 5]); making a criminal threat against Cooper (§ 422 [count 6]); and cutting a utility line (§ 591 [count 7]). After trial, a jury found defendant guilty of inflicting corporal injury, making criminal threats against Doe and Cooper, and first degree burglary. The jury found defendant not guilty of cutting a utility line. The jury also found defendant not guilty of assault by means likely to produce great bodily injury, but convicted him of the lesser included offense of misdemeanor assault on counts 2 and 5. In a bifurcated proceeding, the trial court found defendant had five prior convictions: four strike priors (§§ 1170.12, subds. (a)-(d), 667, subds. (a) (i), 667.5), and one additional prior prison term conviction (§ 667.5). The court sentenced defendant to a determinate sentence of 69 years in prison, an indeterminate sentence of 106 years to life in prison, and 243 days in county jail. This timely appeal followed.
Discussion
I.
Sufficiency of the Evidence
Defendant contends the jury improperly found him guilty of burglary under section 459 because there was insufficient evidence he had the specific intent to commit a felony when he entered Cooper’s apartment.
We review for sufficiency of the evidence. “‘An appellate court called upon to review the sufficiency of the evidence supporting a judgment of conviction of a criminal offense must, after a review of the whole record, determine whether the evidence is such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. [Citation.]... [I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]’” (People v. Park (2003) 112 Cal.App.4th 61, 68, italics added.)
Section 459 states, in relevant part: “Every person who enters any... apartment... with intent to commit... any felony is guilty of burglary.” Although burglary is a specific intent crime, the intent necessary for conviction is the intent to commit any felony. (People v. Wallace (2008) 44 Cal.4th 1032, 1077.) At trial, the prosecution enumerated several felonies defendant could have intended to commit when he entered Cooper’s apartment—infliction of corporal injury on a former cohabitant, assault by means likely to produce great bodily injury, or making criminal threats. Defendant contends that because the jury acquitted him of assault by means likely to produce great bodily injury while in Cooper’s apartment, he must not have had the intent to commit that offense when he entered. Defendant’s argument is refuted by the Supreme Court’s holding in People v. Montoya (1994) 7 Cal.4th 1027, 10411042: “One may b[e] liable for burglary upon entry with the requisite intent to commit a felony or a theft (whether felony or misdemeanor), regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed.”
Defendant also argues there was no evidence he intended to commit more than misdemeanor battery against Doe while in Cooper’s apartment, or that he had any intent to make a criminal threat against Doe or Cooper once inside. “‘[A] jury may infer a defendant’s specific intent from the circumstances attending the act.’” (People v. Park, supra, 112 Cal.App.4th at p. 68.) While in his own apartment, defendant kicked, punched, and slapped Doe, and threatened her with a knife. The jury found those acts constituted felony corporal injury to a former cohabitant and the making of felony criminal threats, as well as misdemeanor assault. When Doe fled defendant’s apartment and ran to Cooper’s apartment for safety, defendant followed her inside and proceeded to choke and punch her. A jury could reasonably infer defendant intended to continue his assaultive behavior when he followed Doe into Cooper’s apartment. There was sufficient evidence to support the jury’s finding that defendant intended to commit a felony inside Cooper’s apartment, and thus sufficient evidence to support the burglary conviction.
II.
Alleged Instructional Errors
A.
The trial court did not err by failing to instruct the jury sua sponte on the lesser included offense of misdemeanor cohabitant battery; even if the court erred, any error was not prejudicial.
Defendant argues the trial court erred by failing to instruct the jury sua sponte regarding the crime of battery against a former cohabitant (§ 243, subd. (e)(1)), a lesser included offense of willful infliction of corporal injury on a former cohabitant (§ 273.5; see People v. Jackson (2000) 77 Cal.App.4th 574, 580 [spousal battery is lesser included offense of willful infliction of corporal injury resulting in traumatic condition against a spouse].)
“Instructions are... required sua sponte only if the proof at trial includes substantial evidence that the lesser offense, but not the greater, was committed; such evidence is ‘substantial’ only if a reasonable jury could find it persuasive.” (People v. Hagen (1998) 19 Cal.4th 652, 672.) Under section 273.5, subdivision (c), “‘traumatic condition’ means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” (Italics added.)
Here, evidence showed defendant grabbed Doe by the neck, choked her, and punched her once in the face. Doe told the police officers defendant jumped on her and beat her. The officers testified Doe’s eye and left cheekbone were swollen, and the neighbor in whose apartment part of the attack occurred testified Doe was “bruised up bad, bad.” Nevertheless, at trial, one defense witness testified she did not observe any injuries on Doe at the scene. A victim may suffer a minor traumatic injury constituting battery against a former cohabitant under section 273.5, subdivision (c), without any external or serious injuries. In his opening brief on appeal, defendant describes Doe’s facial swelling as “minor” and cites the testimony of the one witness who said she did not observe any injuries. But, under section 273.5, subdivision (c), testimony that no external injuries were observed on Doe is not substantial evidence that the lesser crime of battery against a former cohabitant was committed, but not the greater offense. “[T]he Legislature has clothed persons... in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed. Those special relationships form a rational distinction which has a substantial relation to the purpose of the statute. [Citations.]” (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 953.) Accordingly, the trial court did not err in failing to give the instruction on the lesser included offense.
Even if the trial court had erred, however, we would conclude the error was harmless. The failure to provide sua sponte jury instructions on a lesser included offense is prejudicial only if the defendant shows a reasonable probability that he or she would have received a more favorable result had the instructions been provided. (People v. Breverman (1998) 19 Cal.4th 142, 165.) Our review “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (Id. at p. 177.) The evidence that Doe suffered no injuries came through the testimony of a single defense witness, Jones, a friend of defendant’s for approximately 20 years. Jones did not provide a statement to the police the night of the incident, and first provided a statement to defendant’s attorney five months after the incident, following the preliminary hearing. Jones testified she saw Doe after the incident for “[n]o longer than five minutes, because I was on my way out when she came in.” In response to the question, “[d]id you see any injuries on her,” Jones testified, “[n]o, I didn’t.” Jones did not testify she had any medical training or experience with victims of domestic violence, nor that she was paying any particular attention to Doe’s condition.
When compared to the testimony of Doe, Cooper, and the police officers at the scene, and considering the fact the jury had photographs of Doe in evidence before it, we find Jones’s testimony so comparatively weak that there is no reasonable probability the outcome would have been different if the trial court had instructed the jury on the lesser included offense.
B.
Defendant forfeited any argument that the burglary instruction was incomplete or unclear.
Defendant argues the trial court erred by failing to instruct the jury that, in order to be convicted of burglary, he had to intend to commit a felony, rather than a misdemeanor, upon entry into Cooper’s apartment.
The Attorney General initially argues defendant has forfeited this issue because he did not object to the instruction on burglary, CALCRIM No. 1700, and did not request a clarifying or amplifying instruction. “‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.] But that rule does not apply when... the trial court gives an instruction that is an incorrect statement of the law. [Citations.]” (People v. Hudson (2006) 38 Cal.4th 1002, 10111012.) In order to determine whether defendant has forfeited the argument, we must consider whether CALCRIM No. 1700, as read to the jury, was a correct statement of the law.
The jury was instructed with CALCRIM No. 1700, as follows: “The defendant is charged in Count 4 with burglary. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, The defendant entered a building; [¶] And two, When he entered a building, he intended to commit a corporal injury to a former cohabitant/mother of defendant’s child or assault by means likely to produce great bodily injury or criminal threats. [¶] To decide whether the defendant intended to commit a corporal injury to a former cohabitant/mother of defendant’s child or assault by means likely to produce great bodily injury or criminal threats, please refer to the separate instructions that I have given you on those crimes. [¶] A burglary was committed if the defendant entered with the intent to commit corporal injury to a former cohabitant/mother of defendant’s child or assault by means likely to produce great bodily injury or criminal threats. The defendant does not need to have actually committed corporal injury to a former cohabitant/mother of defendant’s child or assault by means likely to produce great bodily injury [or criminal threats] as long as he entered with the intent to do so. The People do not have to prove that the defendant actually committed corporal injury to a former cohabitant/mother of defendant’s child or assault by means likely to produce great bodily injury or criminal threats. [¶] Under the law of burglary, a person enters a building if some part of his or her body penetrates the area inside the building’s outer boundary. [¶] The People allege that the defendant intended to commit corporal injury to a former cohabitant/mother of defendant’s child or assault by means likely to produce great bodily injury or criminal threats. You may not find the defendant guilty of burglary unless you all agree that he intended to commit one of those crimes at the time of entry. You do not all have to agree on which one of those crimes he intended.”
The bracketed language does not appear in the reporter’s transcript of the jury instructions, although it does appear in the written instructions in the clerk’s transcript. Neither defendant nor the Attorney General mentions this apparent omission. Because defendant’s argument focuses on the reference to assault in the instructions, we presume the jury was fully instructed regarding criminal threats as part of the intent necessary to commit burglary.
Defendant argues that the instruction, as given, suggested to the jury that the intent to commit simple assault—a lesser included offense of assault by means likely to produce great bodily injury, on which the jury was also instructed—was sufficient to constitute the requisite intent to commit burglary. We disagree. The jury was instructed regarding both assault by means likely to produce great bodily injury—a felony—and the lesser included offense of simple assault—a misdemeanor. The burglary instruction clearly stated that defendant could be convicted of burglary if, upon entering Cooper’s apartment, he had the intent to commit, among other crimes, assault by means likely to produce great bodily injury. While it would be error for the trial court to fail to identify and define the target felonies when instructing on burglary (People v. Hughes (2002) 27 Cal.4th 287, 348 349; People v. Failla (1966) 64 Cal.2d 560, 564), the trial court in this case did not fail to do so.
We conclude the jury instruction as given was a correct statement of the law. Therefore, defendant forfeited any claim that the instruction was incomplete or otherwise incorrect by failing to object to it in the trial court.
C.
The trial court did not err in failing to instruct the jury sua sponte regarding unanimity (CALCRIM No. 3500).
Defendant argues the trial court erred in failing to give a unanimity instruction regarding the charge of inflicting corporal injury on a former cohabitant/ mother of defendant’s child. According to defendant, the evidence showed numerous acts of corporal injury by defendant against Doe. Defendant therefore contends the trial court erred by failing to instruct the jury with CALCRIM No. 3500, and his conviction for inflicting corporal injury on a former cohabitant/mother of his child must be reversed.
“The defendant is charged with _____ [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.” (CALCRIM No. 3500.)
A trial court has a sua sponte duty to give a unanimity instruction when the prosecution presents evidence of multiple acts proving a single criminal count. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) A unanimity instruction is not required if the offense or defendant’s acts fall within the continuous course of conduct exception. (People v. Maury (2003) 30 Cal.4th 342, 423.) Violation of section 273.5 has been held to fall within that exception (People v. Thompson (1984) 160 Cal.App.3d 220, 224 225), and the facts of this case show defendant’s acts constituting the crime of inflicting corporal injury were part of a continuous course of conduct. A unanimity instruction on this subject therefore was not required.
D.
The trial court did not abuse its discretion in responding to the jury’s request for further instructions regarding burglary.
Defendant argues the trial court erred by failing to properly respond to questions posed by the jury during deliberations. We review the trial court’s responses to the jury for abuse of discretion. (People v. Noguera (1992) 4 Cal.4th 599, 643; People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Briscoe (2001) 92 Cal.App.4th 568, 589.)
The Attorney General argues that defendant forfeited this claim by failing to object in the trial court. To forestall an inevitable claim of ineffective assistance of counsel, we nevertheless turn to the merits of the argument.
The jury was fully and correctly instructed on the charge of burglary. During deliberations, the jury sent out a note reading: “Count No. 4 – Does this statement/count apply to both Jane Doe and Mr. Cooper? [¶] ‘A burglary was committed if the defendant entered with the intent to Commit Corporal Injury to a Former Co habitant/Mother of Defendant’s Child or Assault by means Likely to Produce Great Bodily Injury or Criminal Threats.’” The trial court responded, “[e]ither Jane Doe or Mr. Cooper.” The jury sent another note reading: “Count No. 4 – Burglary: [¶] Does the fact that Guy beat Jane Doe in Cooper’s bathroom show reason for intent when he (Guy) entered Apt.?”
The trial court conferred with counsel, and suggested it would advise the jury to refer to the jury instruction on burglary. Both attorneys stated they did not object to the court’s suggestion. The court wrote back to the jury, “[p]lease review the jury instructions regarding burglary.” The jury sent out another note saying, “[w]e have agreed on all counts except #4. Can we submit a hung verdict on only #4?” The court then questioned the jurors, who agreed they might be able to reach a verdict if they received “some clarification of the terminology that is in the law.” The court then permitted the attorneys to present additional argument regarding burglary, but reminded the jurors that they “must be guided by the instructions,” and that they “are obligated to follow my instructions” if the attorneys said anything inconsistent during their additional argument.
“When the jury asks to be informed on any point of law arising out of the case, the trial court has a duty to help the jurors understand the legal principles that it is being asked to apply. [Citations.] The satisfaction of this obligation does not always require the trial court to elaborate on standard jury instructions already given. When the instructions were full and complete, the trial court has the discretion to determine what additional explanations are sufficient to satisfy the jury’s request for information. Comments that diverge from the standard jury instruction are often risky to undertake. [Citation.]” (People v. Briscoe, supra, 92 Cal.App.4th at p. 589 [reiterating standard instruction when jury’s inquiry is factual question turning on circumstances of case].) Here, the instruction on burglary was full and complete. By suggesting to the jury that it review the instruction as given, and allowing counsel to make further argument on the point, the trial court did not err. (See id. at p. 590.)
III.
Sentencing Issues
A.
The prosecutor did not prove defendant’s prior conviction for aggravated assault was a serious felony under section 1192.7.
Where the charged crime is a serious felony under section 1192.7, subdivision (c), a five year sentence enhancement applies to each prior conviction for a serious felony. (§ 667, subd. (a)(1), (4).) First degree burglary and making criminal threats, of which defendant was convicted, are serious felonies under section 1192.7, subdivision (c)(18) and (38), respectively, and therefore a sentence enhancement would apply to each of defendant’s prior convictions for serious felonies.
During the bifurcated trial on defendant’s prior convictions, the prosecution offered evidence of a 1989 conviction for aggravated assault. No evidence was offered from which the court could have determined whether the assault was aggravated because it was committed with the use of a deadly weapon, or was committed by means of force likely to produce great bodily injury; only the former constitutes a serious felony for purposes of section 1192.7, subdivision (c). (§ 1192.7, subd. (c)(31); People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
Defendant contends, and the Attorney General concedes, the prosecution did not prove the aggravated assault was committed with the use of a deadly weapon, and therefore did not prove it was a serious felony. We remand for retrial on the prior conviction. (People v. Monge (1997) 16 Cal.4th 826, 843 [“federal double jeopardy clause does not apply to the trial of the prior conviction allegation”], affd. sub nom. Monge v. California (1998) 524 U.S. 721, 734.)
The trial court used this prior conviction in its consideration of consecutive sentences.
B.
The trial court erred under section 654 by imposing consecutive prison terms for the crimes of inflicting corporal injury on Doe, assaulting Doe, and committing first degree burglary.
Defendant was sentenced to separate, consecutive prison terms for first degree burglary, inflicting corporal injury on Doe, and making criminal threats against her. Defendant argues the objective and intent of these crimes were the same, and, therefore, the trial court should have stayed imposition of sentence on either the corporal injury or the criminal threats charge, pursuant to section 654.
Section 654 prohibits multiple sentences where a single act violates more than one statute, or where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct with a single intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19 20.) Whether section 654 applies is a fact question for the trial court, and the court’s decision will not be reversed on appeal if there is substantial evidence supporting it. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Defendant’s intent and objective in committing corporal injury on Doe, assaulting Doe, and making criminal threats to Doe were the same—to cause Doe physical and mental harm. Defendant’s intent in committing the burglary was to continue the physical attack on Doe. Therefore, defendant’s acts constituted a continuous course of conduct with a single intent and objective. We remand for resentencing.
The Attorney General’s argument to the contrary is not persuasive. The Attorney General argues defendant had multiple intents and objectives, suggesting that after attacking Doe in his own apartment, defendant “forced his way inside Cooper’s apartment to prevent [Doe] from escaping his attack and to confront Cooper, who he perceived as interfering with his ‘business.’ He threatened Cooper’s life to prevent any further interference. He then attacked Doe again inside Cooper’s apartment.” But the sentences we are dealing with on this issue are not those tied to the crimes committed against Cooper—they are those tied to the crimes committed against Doe.
C.
The trial court did not err in imposing a prison sentence based on an aggravated base term.
Finally, defendant challenges his sentence on counts 3, 4, and 6. Defendant contends the trial court erred in choosing an aggravated base term in calculating his Three Strikes sentence, because the aggravating factors relied on were not found to be true beyond a reasonable doubt by a jury.
The trial court imposed sentences on counts 3, 4, and 6, pursuant to sections 667, subdivision (e)(2)(A)(iii) and 1170.12, subdivision (c)(2)(A)(iii). The trial court selected the upper base term for each of these counts, citing the following aggravating factors: the crimes involved great violence and threat of great bodily harm, and disclosed a high degree of cruelty and callousness (Cal. Rules of Court, rule 4.421(a)(1)); defendant was armed with and used a weapon in the commission of the crimes (id., rule 4.421(a)(2)); defendant’s violent conduct indicates a serious danger to society (id., rule 4.421(b)(1)); defendant had numerous prior convictions of increasing seriousness (id., rule 4.421(b)(2)); and defendant had served a prior prison term (id., rule 4.421(b)(3)).
“For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: [¶]... [¶] (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶]... [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.” (§ 667, subd. (e)(2)(A)(iii).)
Defendant argues the imposition of the upper term on those counts based on aggravating factors not found true beyond a reasonable doubt by a jury violates his constitutional rights, relying on Cunningham v. California (2007) 549 U.S. 270. In Cunningham v. California, the United States Supreme Court held that California’s then effective sentencing scheme, which “allow[ed] 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” (id. at p. 275), “violate[d] a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” (id. at p. 274). In response to Cunningham v. California, the California Legislature amended section 1170 to make clear the middle term is no longer the presumptively correct 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.” (§ 1170, subd. (b), italics added.) Defendant was sentenced after the effective date of the amendment to section 1170, and his constitutional claim therefore fails. (See People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
For the first time, in his reply brief, defendant suggests his sentence was constitutionally defective because the Legislature did not amend section 1170.1, which deals with enhancements. In People v. Lincoln (2007) 157 Cal.App.4th 196, 205, the appellate court concluded section 1170.1, subdivision (d), which contains the same presumption of the middle term for enhancements as former section 1170, suffers from the same constitutional infirmities that former section 1170 did. Even if we were to consider this argument (see Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 351 [appellate court need not consider argument raised for the first time in the litigation in reply brief]), we would find it unpersuasive. No enhancements were alleged against defendant in the first amended information, the jury was not asked to and therefore did not make any findings regarding enhancements, and defendant was not sentenced under section 1170.1 for any enhancements. Rather, he was sentenced under the Three Strikes law, and section 1170.1 is inapplicable here.
In addition, in People v. Black (2007) 41 Cal.4th 799, 816, the California Supreme Court held that “imposition 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.” Here, defendant’s record of prior convictions, on which the trial court relied, justified imposition of the upper term even if section 1170.1 could be found to apply.
Disposition
The judgment is affirmed. We remand for retrial on the prior conviction, and resentencing consistent with this opinion.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.
“For purposes of this section, and in addition to any other enhancements or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: [¶]... [¶] (2)(A) If a defendant has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of [¶]... [¶] (iii) the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.” (§ 1170.12, subd. (c)(2)(A)(iii).)