Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. YA053415 of Los Angeles County. Dudley Gray II, Judge.
Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Deborah J. Chuang and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Erica Lu and Somsack Sisangkhomh were convicted, following a jury trial, of one count of attempted extortion in violation of Penal Code section 524 and one count of first degree burglary of an inhabited dwelling house in violation of section 459. Lu was also convicted of one count of assault with a stun gun in violation of section 244.5, subdivision (b). Sisangkhomh was also convicted of one count of assault by means likely to produce great bodily injury in violation of section 245, subdivision (a)(1). The trial court found true the allegations that Sisangkhomh had three prior serious or violent felony convictions within the meaning of section 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law.) Lu was sentenced to a term of seven years and four months in state prison. Sisangkhomh was sentenced to life in prison plus 85 years.
All further statutory references are to the Penal Code unless otherwise indicated.
Lu and Sisangkhomh appealed from the judgment of conviction, contending that the trial court erred in failing to instruct the jury on the lesser offense of simple assault, in granting a 13 day continuance in the middle of trial, and in commenting on the evidence. They also contended that section 654 barred separate sentences for their burglary and assault convictions. Lu contended that there was insufficient evidence to support her conviction for assault with a stun gun and that the trial court erred in admitting out of court statements by two victims. Lu further contended that imposition of the upper term for count two and consecutive terms for counts one and six violated her federal constitutional right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296. We agreed that Lu's and Sisangkhomh's convictions for assault must be stayed pursuant to section 654, but affirmed the judgment of conviction in all other respects.
Lu and Sisangkhomh filed petitions for review with the California Supreme Court, which were denied on January 4, 2006. Sisangkhomh did not pursue further relief, and the judgment against him became final 90 days after his petition was denied. Lu filed a petition for writ of certiorari with the United States Supreme Court. The Court granted this petition and, on February 20, 2007, remanded the case to this Court for further consideration in light of its opinion in Cunningham v. California (2007) 549 U.S. ___. At our request, the parties submitted letter briefs addressing the effect of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. Lu contends that Black has no application to her sentence, and that her sentence is improper under Cunningham. We affirm the judgment of conviction.
Sisangkhomh was sentenced under the Three Strikes law and section 667, subdivision (a), so that Blakeley and Cunningham have no application to his case.
Facts
On August 12, 2002, Zhong Lin and Alice Ni were in the upstairs bedroom of their home in Torrance. They shared the house with several other people, including Ni's brother Steven. Sometime between 1:00 and 3:00 p.m., Lin heard someone walking outside the bedroom door. Lin opened the door and saw Sisangkhomh, whom he did not know. Sisangkhomh immediately started hitting him. Sisangkhomh hit Lin many times in the face and head, very forcefully. Sisangkhomh also pressed Lin's head into the floor. As Sisangkhomh was hitting Lin, he asked him if his name was Yang. Lin replied that it was not. Sisangkhomh said that his boss wanted him to get money from Yang. Lin showed Sisangkhomh his identification. Lin told Ni to call the police. Sisangkhomh hit her as she left.
Ni started to run downstairs. While on the stairs, she saw Lu holding a black object that looked like a stun gun. Light was flashing from it. Lu pointed the object at Ni. The women were about three steps apart. Lu told Ni not to move.
At about this time, Lin went to the top of the stairs and saw Lu pointing an electronic device at Ni. Lin also saw Steven Ni, crouching on the floor on a comforter, holding his stomach. Steven looked like he was in pain. Steven told Lin that he had been shot by an electric gun.
At that point, an employee of Lin's named Bai came into the house. Sisangkhomh went into the kitchen and got a knife. He pointed the knife at Lin and Ni and told Lin that he would be back for Yang. Sisangkhomh and Lu left.
Lin did not tell Bai to call the police, and did not call the police himself, because he was lightheaded and really confused by Sisangkhomh's beating. Lin had bruises on both temples and swelling on both sides of his face. At trial, he testified that some bones in his face still were not even.
On October 28, 2002, about 9:00 p.m., Lin was working in his restaurant when he received a call from a house guest, Hiroshi Kubota. Kubota told Lin that Lin's house had been burglarized. Kubota sounded very scared. When Lin got home, Kubota said that he had returned to the house with a girlfriend and been confronted by a masked man with a gun. The two were tied up with duct tape and put into the bathroom. Kubota observed a total of three burglars, all with masks over their faces with only their eyes showing. After it became quiet, Kubota came out of the bathroom.
Lin determined that a heavy safe was missing from his bedroom closet. The safe contained his passport, life insurance papers, checks and cash. Lin called police.
Kubota described the burglary to Torrance Police Officer E. Spear. Kubota told Officer Spear that two of the burglars were Hispanic and one Caucasian. All spoke with American accents. Kubota told police that he could hear the burglars ransacking the house, and that the burglars took his wallet and cell phone. Hua Li, Kubota's girlfriend, told police that the suspects fled in a gray Honda Accord.
On October 29, Lin received a telephone call from a woman who told him that he had to pay her $20,000 to get back the things which had been taken from his home the day before. She told Lin not to call the police. This made him very scared. The woman called back later that day and again asked for money. She also called Lin on October 30. Lin told her that he did not have $20,000. She said that he would have to pay $10,000 to get his property back.
On October 31, Lin and Ni went to the Torrance Police Department and spoke with Detective Richard Glass. Glass attached a recording device to Lin's cell phone. Lin's cell phone rang while Glass was attaching a recording device to it. Lin answered the phone. The call was from Lu. Lin told police that this was the woman he had spoken to the night before, and that he was supposed to meet her behind his restaurant and deliver $10,000 to get his property. The woman he was supposed to meet was a young Asian woman who would be wearing jeans and a black top.
A series of telephone calls ensued. Lu spoke with Lin and sometimes Ni. Lin was stalling at the request of police. At one point in the conversations, Lu told Ni that if she did not pay the money, Ni and Lin would have a problem with their business.
Police placed a briefcase in a discarded sofa behind a Best Buy store. Lin then told Lu that the money would be in a sofa behind the Best Buy store. Police also began a surveillance of the strip mall where Lin's and Ni's restaurant was located. Soon, Sisangkhomh and Lu pulled into the mall's parking lot in a white Lexus. Sisangkhomh was the driver.
A short time later, Lu's daughter, Stephanie Ho, walked to a green Acura parked nearby and got in. Carrie Phung was in the driver's seat. The two sat in the car for a few minutes, then got out, walked to the Lexus and got into the back seat of that car. The car drove to a Jack-in-the-Box restaurant, went through the drive-through area, and returned to the strip mall, parking next to the green Acura. Ho and Phung got out of the Lexus and got back into the Acura.
Both cars stayed in the parking lot for a short while. Lu spoke on a cell phone. Both cars then drove out of the parking lot. The Acura drove to the sofa behind the Best Buy. Ho took a brown shopping bag to the sofa and exchanged it for the black briefcase placed there by police. Police videotaped the exchange. Ho and Phung were arrested. Police also arrested Sisangkhomh and Lu, who were in the Lexus around the corner from the Best Buy.
The shopping bag which Ho put into the sofa contained Lin's passport, birth certificate and work permit, all of which had been inside the safe when it was taken from Lin's house. A cell phone in the Lexus had been used to call Lin's cell phone number.
Ho told police that she lived near Lu and Sisangkhomh, and that on the morning of October 31, they brought the shopping bag to her house. Ho was supposed to give whatever she retrieved from the sofa to Lu and Sisangkhomh.
Police obtained and executed a search warrant for Lu's and Sisangkhomh's house. They found a stun gun, a night vision scope, and a navy blue watch cap with holes cut out for the nose and eyes.
During trial, Detective Glass showed the stun gun to the jury, and turned it on. The gun emitted a bright light and made a crackling sound.
It was stipulated that Lin did not recognize Lu in a six-pack photographic line-up shown to him on November 1, 2002.
Discussion
1. Hearsay statements
Lu contends that the trial court erred in admitting Lin's testimony that Steven Ni told him he had been shot by an electric gun and that Hiroshi Kubota told him that three armed, masked men had burglarized Lin's house.
Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted. (Evid. Code, § 1200, subd. (a).) Except as provided by law, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).)
Sisangkhomh's attorney made hearsay objections to the above-described testimony, which the trial court overruled without comment. We presume that the trial court "knows and applies the correct statutory and case law [citation] and is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decision making process. [Citations.]" (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another point by Price v. Superior Court (2001) 25 Cal.4th 1046.)
Both Steven Ni's and Hiroshi Kubota's statements would qualify under the Evidence Code section 1240 spontaneous statement exception to the hearsay rule. Evidence Code section 1240 provides that a hearsay statement is admissible if it "(a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) [w]as made spontaneously while the declarant was under the stress of excitement caused by such perception."
When Lin came downstairs after Sisangkhomh stopped hitting him, Steven Ni was crouching on a bed or comforter on the floor, holding his stomach when Lin first saw him. He looked like he was in pain. Ni said that he had been shot by an electric gun and tied up. Ni's statement was an explanation of his condition, and to all appearances was made while he was under the stress of the event, and thus was admissible under Evidence Code section 1240. Ni's statement would also appear to have been admissible pursuant to Evidence Code section 1250, which provides an exception to the hearsay rule for a statement of a declarant's then existing mental or physical state.
The record does not show how soon after the robbery Hirsohi Kubota called Lin, but Lin described Hiroshi Kubota as "very scared" when Lin spoke with him on the telephone and at home. Thus, to all appearances, Kubota was under the stress of the robbery when he described that robbery, and his statement to Lin was admissible pursuant to Evidence Code section 1240.
Even assuming for the sake of argument that Kubota's statement was hearsay and not properly admitted, we would find no harm to Lu under any standard of review. Lu was not charged with the robbery. Lu contends that the prosecutor used Kubota's description of the robbery to argue that the "innocuous-sounding" statements made by Lu in demanding $10,000 were really threats. We do not agree. We find Lu's statements to be vague but not innocuous. We also see no possibility that the jurors would have believed that Lu was one of the robbers even though she was not charged in the robbery, and thus no possibility that the jurors would convict her of extortion because they believed that she had been a participant in a violent robbery.
2. Sufficiency of the evidence – assault with a stun gun
Lu contends that there is insufficient evidence to support her conviction for assault with a stun gun because there is no evidence that the item she had in her hand was a stun gun which was capable of temporarily immobilizing a person and no evidence that she was close enough to Alice Ni to use the item as a bludgeon. We see sufficient evidence to support the conviction.
In reviewing a challenge to the sufficiency of evidence, the reviewing Court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Mincey (1992) 2 Cal.4th 408, 432.) The Court must determine whether the evidence, so viewed, discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) The standard of review is the same when the prosecution relies mainly on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
In order to convict Lu of assault with a stun gun, the jury had to find that Lu assaulted Alice Ni, and used a stun gun to do so. A stun gun is any item "used or intended to be used as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge." (§ 244.5, subd. (a).)
Pointing a loaded gun at a person in a threatening manner constitutes an assault because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury. (People v. Fain (1983) 34 Cal.3d 350, 356; People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Thus, pointing an operational stun gun at a person in a threatening manner from a distance close enough to inflict an electrical charge if the gun is activated also constitutes an assault. As Lu acknowledges, an assault with a stun gun may also occur if the gun is used as a bludgeon, assuming that the defendant is close enough to bludgeon the victim. (See People v. Miceli, supra, 104 Cal.App.4th at p. 269.)
Here, there was testimony that Steven Ni stated that he was "shot" by an electric gun and then tied up. It is reasonable to infer from this statement that the electric gun temporarily immobilized Steven Ni. Lu was holding an electrical or electronic object in her hand, with light flashing from it. It was reasonable to infer that this was the gun which "shot" Steven Ni. Alice Ni testified that when she was about three steps away from Lu, Lu pointed the object at her and told her not to move. This was sufficiently close for Lu to either shock or bludgeon Ni.
3. Trial court's comments
Lu contends that two comments by the trial court deprived her of her right to due process and a fair trial. We see no error.
Respondent contends that Lu has waived this claim by failing to object in the trial court, and she replies that an objection would have been futile. We agree that an objection to the second comment would have been futile, since Sisangkhomh moved for a mistrial on the basis of that comment, and the motion was denied. We also agree that an objection to the first comment would have been futile, because there was nothing objectionable about that comment. Even assuming that the claims were waived, we would reach them in the interests of judicial economy.
"The court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the determination of the case." (Cal. Const., art. VI, § 10.)
"'A California trial court may comment on the evidence, including the credibility of witnesses, so long as its remarks are accurate, temperate, and "scrupulously fair." [Citation.] Of course, the court may not express its views on the ultimate issue of guilt or innocence or otherwise "usurp the jury's exclusive function as the arbiter of questions of fact and the credibility of witnesses." [Citation.]'" (People v. Sanders (1995) 11 Cal.4th 475, 531.)
After Lu questioned Alice Ni on whether any doors or windows in the house "had been broken in," the trial court told the jury: "Before we get too far away, don't be confused. There's no requirement that doors be broken into or windows be broken. That's not an element of the crime. The doors could be unlocked. They could have a key. There's no requirement that there be a breaking in that sense." Ni was permitted to answer Lu's question about a break-in, and said that she did not recall.
We see no error. The statement is a correct statement of the law. Lu contends that the absence of a forced entry would make it more likely that they were invited in and perhaps formed their intent once inside the residence. Perhaps so, but the trial court's comments did not preclude Lu from making this argument. The lack of evidence on this topic did. Lu and Sisangkhomh did not even attempt to introduce any evidence that they were invited into the house.
The trial court's second comment came after Lu asked Alice Ni about Lin's recall of events in August 2002. Ni replied that Lin had trouble recalling most of the events. The trial court then stated: "Let me say for those of you in the jury [who] can see the thickness of this file. I saw the file for the first time the same time you did. Just looking at the outside of it, though, I can see it's been in court since November the 21st of 2002. [¶] I'm sure there were very good reasons why other judges continued this case for over a year, but it's been in court in litigation for over a year. You may want to consider that when you talk about these little minute, finite details that are a little cloudy."
We see no error. The jury clearly knew when the crimes were alleged to have occurred, and could themselves calculate the amount of time that had passed between that date and the trial. It is simply common sense that the memory of the details of most events becomes less clear as time passes. The jury was later instructed, pursuant to CALJIC
No. 2.21.1 that failure of recollection is common, and that the jury should consider whether a discrepancy related to an important matter or only to something trivial.
Lu contends that the trial court's comments undercut his attempt to convince the jury that Lin's recollection of what occurred was faulty and could be interpreted as telling the jury that the prosecution's witnesses were credible and proved the prosecution's case beyond a reasonable doubt. We do not agree. Nothing in the court's remarks suggest that it found Lin credible or believed that the prosecution had proved its case beyond a reasonable doubt. If anything, the judge's comments implied the opposite about Lin's credibility, because those comments told the jury that Lin's memory was likely to be faulty due to the passage of time.
We also note that the court instructed the jury, pursuant CALJIC No. 17.31, that: "I have not intended by anything I have said or done, or by any questions I may have made or asked, or by any comment I may have made to suggest what you should find to be the facts or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, you must disregard it, and you must form your own conclusion. [¶] Any comments made by the court are intended to be advisory only and they are not binding on you as you must be the exclusive judges of the facts and of the believability of the witnesses. [¶] You may disregard any or all of my comments if they do not coincide with your views of the evidence and the believability of the witnesses."
We presume that the jury followed this instruction. (See People v. Bonin (1988) 46 Cal.3d 659, 669, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823; People v. Chavez (1958) 50 Cal.2d 778, 790.)
4. Mid-trial Continuance
Lu contends that the court's mid-trial 13-day continuance violated her right to an expeditious disposition of her trial. We see no prejudice to Lu.
"Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause." (§ 1050, subd. (e).) A defendant who contends on appeal that a continuance was improperly granted during trial has the burden of showing prejudice as a result of the continuance. (People v. Katzman (1968) 258 Cal.App.2d 777, 787-790, overruled on another point by Rhinehart v. Municipal Court (1984) 35 Cal.3d 772; see § 1050, subd. (l) [section governing continuances is "directory only and does not mandate dismissal of an action by its terms."].)
The court's stated reason for continuing the trial from December 23 to January 5 was that the court was going to be on vacation during that period. This does not appear to be good cause for a continuance. (See Rhinehart v. Municipal Court, supra, 35 Cal.3d at p. 783 [suggesting in dicta that a judge's vacation would not establish good cause for a continuance].)
Lu does not identify any prejudice from the continuance, however. Rather, she relies on People v. Santamaria (1991) 229 Cal.App.3d 269 to contend that the continuance in this matter was of such a magnitude that prejudice must have occurred. In Santamaria, the Court of Appeal found that a continuance of 11 calendar days during jury deliberations, granted without good cause, was of such a magnitude and so inherently suspect, that the defendant was not required to show prejudice. (Id. at pp. 274-283.)
Here, the continuance took place before the parties rested or gave their closing arguments. That was not the case in Santamaria. As the Court noted in Santamaria: "Had the adjournment occurred in midtrial, counsels' recapitulation of the evidence during argument might have nullified or minimized the effect of the delay on the jurors' recall. Because the prolonged interruption at issue occurred after argument and during deliberations, common sense and experience tell us that the delay undoubtedly had some significant effect on jurors' ability to remember complicated facts, as well as on their recall and understanding of instructions." (People v. Santamaria, supra, 229 Cal.App.3d at p. 282.) Thus, Santamaria does not assist Lu.
Further, the continuance in Santamaria occurred in February. Here, the continuance occurred from December 24 through January 4, during a traditional holiday period when jurors were likely to be particularly inconvenienced by court duties. (See People v. Johnson (1993) 19 Cal.App.4th 778, 790-792 [no reversible error where trial court interrupted jury deliberations for 17 calendar days, including nine court days, during December holidays]; Hamilton v. Vasquez (9th Cir. 1994) 17 F.3d 1149, 1159 [no denial of due process where trial court interrupted jury deliberations for 18 calendar days during December holidays].)
5. Section 654
The jury in this case was instructed that the defendants were guilty of burglary if they entered Lin's house "with the specific intent to commit an assault with Force Likely to Produce Great Bodily Injury, or Assault with a Deadly Weapon . . . ." The jury convicted Sisangkhomh of burglary and assault with force likely to produce great bodily injury. The jury convicted Lu of burglary and assault with a stun gun. Lu contends that section 654 bars separate punishment for her assault and burglary convictions. We agree.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Section 654 applies not only where there is one act in the ordinary sense, but also where an indivisible course of conduct violates more than one statute. "'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Latimer (1995) 5 Cal.4th 1203, 1208.)
Whether the acts of which a defendant has been convicted constituted an indivisible course of conduct is primarily a factual determination, made by the trial court, on the basis of its findings concerning the defendant's intent and objective in committing the acts. When a court, as here, makes no express findings on the issue, a finding that defendant's crimes were divisible inheres in the judgment. If that implied finding is supported by the evidence, it must be upheld. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
Burglary consists of entry into a house or other specified structure with the intent to commit a felony. (§ 459.) Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, section 654 will permit punishment for one or the other but not for both. (People v. Price (1991) 1 Cal.4th 324, 492.)
Respondent contends that the trial court could have made a finding that these crimes fell under the multiple victim exception to section 654. Respondent acknowledges that burglary, standing alone, is not a violent crime for purposes of the multiple victim exception. (See, e.g., People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.) Respondent contends that because burglary of a residence committed when residents are at home is a crime of violence under section 667.5, it is also a crime of violence for purposes of the multiple victim exception to section 654. Respondent has not cited, and we are not aware of, any cases which so hold. People v. Miller (1977) 18 Cal.3d 873 and People v. Hall (2000) 83 Cal.App.4th 1084, cited by respondent, make no reference to section 667.5. Those cases discuss burglaries in which crimes of violence were actually committed against the victims of the burglaries. Further, the discussion of burglary in Hall is purely dicta, as that case involved the crime of brandishing a firearm.
We recognize that Lu and Sisangkhomh did in fact commit assault, which is a crime of violence, against the occupants of the house. That fact does not bring the multiple victim exception of section 654 into play, however, as Lu and Sisangkhomh were each convicted of assaulting only one victim. Sisangkhomh was convicted of assaulting Lin. Lu was convicted of assaulting Alice Ni. As the Court in Hall pointed out, the multiple victim exception to section 654 applies when a defendant is convicted of acts of violence against multiple victims. (People v. Hall, supra, 83 Cal.App.4th at pp. 1094-1096.)
In Miller, for example, the defendant was convicted of robbery, burglary and assault involving a jewelry store and its employees. The burglary was alleged to have been one in which the defendant inflicted great bodily injury on an occupant, under a now-repealed version of the burglary statute. The Court characterized this crime as a crime of violence. A firearm was used in the course of the robbery, making it a crime of violence. The victim of the armed robbery was determined to be a man named Keating. The victim who received great bodily injury was a man named Burk. The Court found that the defendant could be punished separately for the robbery of Keating and the "aggravated" burglary of Burk under the multiple victim exception. The defendant could not be punished separately for the assault. (People v. Miller, supra, 18 Cal.3d at p. 886.)
The use of the firearm was accomplished by an accomplice. Lu was convicted of the substantive crime of robbery. (People v. Miller, supra, 18 Cal.3d at p. 879.)
Respondent also contends that the trial court could have found that Lu and Sisangkhomh entered the house with the intent to rob Yang, and that this additional intent would legitimize punishment for both burglary and assault. However, the People did not charge Lu and Sisangkhomh with burglary with the intent to commit robbery (or theft). They were charged with burglary with the intent to commit assault. Under such circumstances, the entry for purposes of assault and the assault constitute one continuous transaction. (People v. Radil (1977) 76 Cal.App.3d 702, 713 [defendant who was charged with burglary with intent to commit assault and convicted of burglary and assault could only be sentenced for one crime under section 654]; see also People v. Hester (2000) 22 Cal.4th 290, 294; compare People v. Nelson, supra, 211 Cal.App.3d at p. 639, fn. 3 [defendant who was charged with burglary with intent to commit theft, committed assaults during the burglary and was convicted of burglary and assault could be punished for both burglary and assault under section 654, distinguishing People v. Radil, supra].)
Since the burglary and assaults were committed as part of a continuous course of conduct, Lu's eight month term for assault must be stayed pursuant to section 654.
6. Upper term
Lu contends that Black has no application to her sentence, and that the imposition of the upper term is improper under Cunningham.
In Cunningham, supra, the U.S. Supreme Court held that California's procedure for selecting an upper term violated a defendant's Sixth and Fourteenth Amendment rights to jury trial because it gave the judge, not the jury, the authority to find facts that exposed a defendant to an elevated upper term sentence. The Court explained that "the 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 has explained the application of Cunningham to California's sentencing law: "Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California's current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court's exercise of its discretion in selecting the appropriate term from among those authorized for the defendant's offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows 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." (People v. Black, supra, 41 Cal.4th at pp. 815-816.)
The Court has also explained that the "prior conviction" exception should not be read too narrowly. This 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." (People v. Black, supra, 41 Cal.4th at p. 819.) Examples of related issues which fall within the exception are whether the convictions are numerous or of increasing seriousness. (Id. at pp. 819-820.)
Here, the trial court found eight aggravating factors: (1) the crimes involved high degrees of violence; (2) the crimes involved potential for great bodily harm; (3) the crimes involved high degrees of cruelty and callousness; (4) Lu was armed with a weapon at the time of the commission of the offense; (5) the manner in which the crimes were carried out demonstrated a high degree of planning, sophistication and professionalism; (6) the crimes involved the attempted or actual taking of a great deal of valuable property; (7) Lu had previously served a prison term; and (8) Lu did poorly while on parole.
The probation report shows that Lu's prior prison term was the result of a federal court conviction for racketeering and money laundering. By finding that Lu served a prison term, the trial court necessarily also found that Lu had suffered a prior felony conviction. Cunningham permits the trial court to make a finding that a defendant suffered a prior conviction. One valid factor is sufficient to render the upper term constitutional under California v. Cunningham, supra. (People v. Black, supra, 41 Cal.4th at pp. 819-820.) Once the trial court found that Lu had suffered a prior conviction, the court was permitted to make findings of fact about additional aggravating circumstances such as serving a prison term for state law balancing purposes. (People v. Black, supra, 41 Cal.4th at pp. 819-920; see People v. Thomas (2001) 91 Cal.App.4th 212, 220-223 [court's finding that defendant served prior prison term falls within exception].)
Further, the fact of the conviction does not appear to have been disputed. Lu's counsel conceded at the sentencing hearing that she had suffered this conviction.
A second valid factor exists in this case. The jury convicted Lu of assault with a stun gun. We ordered this conviction stayed, but it constitutes a jury finding that Lu was armed in the commission of the offense, one of the aggravating factors relied on by the trial court.
In her original opening brief, Lu also contended that the imposition of consecutive terms violated her right to a jury trial. Lu acknowledges that the California Supreme Court has held in Black that the right to a jury trial as discussed in Cunningham does not apply to consecutive sentences, and that this Court is bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Disposition
Lu's sentence for assault is ordered stayed pursuant to section 654. The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.