Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Charles V. Stone, Judge, Super. Ct. No. 1085195
Alister McAlister, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On February 24, 2005, an information was filed in the Superior Court of Stanislaus County charging appellant Jimmy Edward May with count I, receiving a stolen vehicle (Pen. Code, § 496d) with a prior conviction for auto theft (Veh. Code, § 10851) within the meaning of section 666.5; count II, possession of methamphetamine (Health & Saf. Code, § 11377); and count III, misdemeanor possession of a hypodermic needle (Bus. & Prof. Code, § 4140). As to counts I and II, it was further alleged appellant suffered one prior strike conviction (§ 667, subds. (b)-(i)) and served five prior prison terms (§ 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code unless otherwise indicated.
The allegation of a prior conviction for auto theft was subsequently stricken because it was not proved.
On May 2, 2005, appellant's jury trial began. On May 3, 2005, appellant was found guilty as charged. On May 4, 2005, appellant waived a jury trial on the special allegations, and the court found all special allegations true.
On May 31, 2005, appellant filed a motion to dismiss the prior strike conviction. On June 7, 2005, the prosecutor filed a statement in aggravation.
On June 10 and 30, 2005, the court conducted the sentencing hearing, denied appellant's motion to dismiss, denied probation, and sentenced appellant to an aggregate term of 12 years four months: as to count I, the court imposed the upper term of three years, and doubled that term to six years as the appropriate second strike sentence; as to count II, the court selected the midterm of two years, doubled it to four years as the second strike term, and imposed a consecutive term of one year four months (one-third the doubled midterm); five consecutive one-year terms for the prior prison term enhancements; and a concurrent term of six months for the misdemeanor conviction in count III.
The trial court incorrectly calculated appellant's sentence at the first sentencing hearing, and recalled the matter on its own motion to correct and clarify the sentence and enhancements.
On July 21, 2005, appellant filed a timely notice of appeal.
FACTS
On the afternoon of December 6, 2004, Megan Neely drove to her job at an office near Doctor's Hospital in Modesto. She parked her 1987 white Honda Accord on the third floor of a nearby public parking garage. Her car was equipped with a stereo and CD player. The registration and insurance information were in the glove compartment, and she kept other personal papers and items in the car. She locked the doors and took the keys with her, but she did not place the "Club" security device across the steering wheel. Around 7:00 p.m., Neely left work and returned to the parking garage. She discovered that her car had been stolen and immediately reported the theft to the police.
Around 10:30 p.m. on December 10, 2004, Stanislaus County Sheriff's Deputy David Thompson responded to a dispatch on Canal Street in Modesto, unrelated to Neely's stolen car. Around 11:00 p.m., Deputy Thompson returned to the neighborhood on another unrelated dispatch, this time regarding alleged criminal threats at a residence on Canal Street. Deputy Thompson noticed a white Honda Accord was parked directly in front of the Canal Street residence. Deputy Thompson realized he had not seen the white Honda parked in that location when he had driven on Canal Street 30 minutes earlier.
Deputy Thompson testified the white Honda was backed into the driveway of the residence, with the front of the car facing the street. Billy May, James Wood, and Steve Mackelroy were standing by the trunk and looking into that compartment. The driver's side door was open, and appellant was standing inside the open door, in such a position that he could have slid into the driver's seat. Patricia Mejia stood in front of the car
Deputy Thompson approached from the passenger side of the white Honda and tried to talk to the group to determine if they were the individuals who called for assistance. Appellant immediately performed a "turn and dive," crouched down, and disappeared behind the vehicle. The other four individuals walked away from the white Honda and did not respond to Thompson's questions, and it appeared "as if nobody wanted to be around the car as I was walking up."
Deputy Thompson became nervous about the situation and called in the license plate number of the white Honda. Within seconds, Thompson learned the vehicle had been reported stolen; it was Megan Neely's Honda. Thompson drew his service weapon and ordered everyone on the ground, and called for immediate backup assistance. Appellant and the others were still near the car, and they complied with his order without incident. Thompson was unable to keep appellant in view because he was on the other side of the car.
After the backup officers arrived, Deputy Thompson advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and appellant agreed to answer questions. Appellant initially identified himself as "Jimmy Lindsey," but his identity was later determined during booking. Deputy Thompson testified that when he asked appellant about the white Honda, appellant pretended to be tired, acted as if he was half-asleep, mumbled, and would not respond to the questions. When Deputy Thompson stepped away from appellant and spoke to another deputy, appellant appeared alert and began looking around as if everything was fine.
Appellant eventually said that he was homeless, and that he walked from a nearby park that night to visit his relatives at the house. When he arrived at the house, he did not knock or make contact with the residents. Instead, he decided to lie down under a tree in the front yard and go to sleep. Appellant said a car was not in the driveway when he fell asleep. Appellant claimed he was still sleeping when Deputy Thompson arrived and woke him up. Appellant also claimed that when he woke up, he saw the Honda parked in the driveway for the first time. Appellant said he had never been inside the Honda.
Deputy Thompson testified there was a tree about 10 feet away from the Honda. The tree and ground were wet and covered with condensation, but appellant's clothes were completely dry and he appeared warm. Appellant did not explain why he decided to sleep on the wet ground instead of contacting his relatives in the house.
Deputy Thompson asked appellant if he would find anything sharp on him if he conducted a search. Appellant said he had a "rig" in his possession, which Thompson interpreted as a syringe. Thompson searched appellant and found a syringe with a needle in his jacket pocket. Thompson testified the plunger was pulled back, and there was some off-white liquid in the syringe. It was not filled to capacity. Appellant said the syringe possibly contained methamphetamine.
Deputy Thompson also interviewed Victoria Krauss (Krauss), appellant's half-sister, who was staying at the residence with her mother, her brothers, Billy and Richard, and her niece's family. Appellant did not live there. Krauss did not appear to be under the influence of alcohol or narcotics, and she spoke clearly and answered Thompson's questions. Krauss stated that she had been inside the house all night. However, she had seen the white Honda parked in front of the residence for about three days before the incident. She also saw appellant driving the car and "in possession of it for the last three days." Krauss stated she believed the car was stolen and she was going to call the authorities the next morning. Krauss went back inside the residence after she spoke with Thompson.
Deputy Thompson arrested appellant in the presence of his half-brother, Billy May, who was still detained and in handcuffs. Billy did not say anything when appellant was arrested, and did not protest when the white Honda was towed. No one stepped forward to claim ownership or protest as the Honda was towed.
On December 13, 2004, Megan Neely picked up her Honda from the tow yard, and had to pay $220 to recover it. The stereo and CD player were gone, there was a hole in the dashboard with exposed wires, and the plastic frame around the stereo compartment was damaged. Neely's personal items were gone, along with the registration and insurance papers. The front bumper was not damaged, but the front license plate was "crunched" in such as way that it was hard to read the license number. Neely testified the doors, handles, windows, and ignition were intact and not damaged in any way. Neely was able to place her key into the ignition and start the car.
Ms. Neely discovered several unusual items in the trunk that did not belong to her: half of an exercise bike, a pair of jeans, a broken tape deck, and someone else's pay stub. Neely gave the car to a friend, and left the pay stub in the trunk instead of giving it to the police. Neely testified she did not know appellant, Billy May, or Victoria Krauss, she had never been to their house on Canal Street, and she did not give anyone permission to take the car.
Deputy Thompson testified that a key was in the Honda's ignition when he recovered the car from Canal Street. Thompson testified that in his previous investigations in stolen vehicle cases, he had seen situations where modified or shaved keys were used as master keys to open the car doors and start the ignition without breaking anything. Thompson testified the key recovered from the Honda appeared to be worn, but it did not appear to be filed or have any of the normal type of modifications. Megan Neely examined this key and testified that it did not belong to her, but it looked like a standard Honda Key.
Additional Prosecution Evidence
At trial, Victoria Krauss testified that she had not seen appellant that much because he went to prison in 1995. After he was released, Billy May helped appellant by giving him clothes and driving him around.
Ms. Krauss testified that she recalled being interviewed by Deputy Thompson that night, but she could not remember what she said. Krauss testified that she was drunk and under the influence of "several different narcotics," and had a fight with appellant earlier that night. Krauss testified that at the time of the incident, appellant was homeless and did not live at the house. Appellant had been driving a black Toyota with a cracked windshield, and it was parked across the street from the house. Krauss testified that the white Honda Accord had also been parked across the street for three days, and she figured the car was stolen.
Ms. Krauss denied telling Deputy Thompson that appellant had been in possession of the white Honda. Krause believed her half-brother, Billy May, had possessed it. Billy said he was buying the car. Krauss testified that immediately after appellant was arrested, Billy said that "he felt really bad about letting [appellant] go to jail and taking the rap for something he did." Krauss admitted she did not disclose this information until an investigator came to her house and asked her questions. Krauss explained that she did not get along well with appellant, she was really drunk that night, and she was really mad at him. She was not drunk the next day, but she still did not say anything because she did not want to turn in her other brother, Billy.
Also at trial, defense counsel extensively cross-examined Deputy Thompson as to the general accuracy of his reports, and particularly about his report of appellant's arrest. Thompson conceded the Honda's license plate was incorrect in the typewritten report, but believed the mistake was a typographical error when the stenographer transcribed his dictation from his written notes. Thompson's report also referred to a supplemental report by Deputy Castillo about Patricia Mejia. Thompson testified that Deputy Castillo was present at the scene, he detained Mejia, and he investigated Mejia's connection to a controlled substance. Mejia was also arrested that night, but Thompson was not aware if Castillo filed a report.
Defense counsel asked whether Deputy Thompson made any mistakes when he reported Victoria Krauss's statements about appellant being in possession of the white Honda. Thompson testified he did not make any mistakes about Krauss's statements. "I actually spoke with Victoria Krauss and took that statement personally and specifically remember speaking to her about, regarding Jimmy."
"[Defense counsel]: So, Deputy, are some of your reports more accurate than others?
"A. I believe I try and make all of my reports as accurate as possible.
"Q. Despite that some turn out to be more accurate than others?
"A. I guess it's possible.
"Q. And your reference to—you wrote in your report that Deputy Castillo wrote a report. You wrote that down as a fact in your report; but that wasn't a fact. That was an assumption. Right? You assumed something happened and wrote it as a fact in your report?
"A. Yes. At the time that this report was dictated, because of circumstances and because of our normal procedure, I believed that a supplemental report would be written.
"Q. So it was a false assumption. A mistaken assumption?
"A. Yes. It turned out to be not very true."
Deputy Thompson's report also stated that a palm print had been found in the white Honda, but he recalled the criminalist told him that a possible thumbprint had been found.
"Q. So in this process of dictating and typing, some things end up completely different by the time they end up in the report?
"A. That is correct."
Deputy Thompson testified that "[s]omeone typed the word partial palm print in my report. It's not exactly what I dictated." Thompson agreed it "got lost in translation."
Diana Conner, a crime analyst technician, examined the Honda for fingerprints. There were a lot of smudges that could not be examined, but she recovered a partial latent print from the rear view mirror inside the car. There were more than 11 characteristic details which identified the print as appellant's thumbprint. Connor testified she had no doubt that appellant's fingerprint was in the car.
Detective Phil Ward testified he conducted a Valtox presumptive test on the liquid in the syringe. Ward had been an officer for 16 years, had been involved in well over 1,000 narcotics investigations, had over 300 hours of in-house and conference training, and previously qualified as an expert in Stanislaus County on usable amounts of methamphetamine. Ward explained there were three factors used by law enforcement agencies to determine if a substance consisted of a usable amount: if it could be seen by the naked eye, "which means you can visually look at it and see whatever may possibly be the suspected" substance; whether it can be manipulated, "whether it be with your hand, razor blade, syringe, spoon, any type of object as long as you can see it and move it"; and whether it could be ingested, "which means you take it into your body somehow, which means shoot it, snort it up, drink it, eat it, any way of getting it into your body." Ward examined the liquid in the syringe before he tested it, and there was no doubt the substance was a usable amount
"… In this case [the liquid] fit all three criteria. It could be seen visually, you could manipulate it … such as putting it into a syringe, and it could be ingested."
Detective Ward testified that he obtained some of the liquid from the syringe to conduct the Valtox test:
"What I normally do is I'll take the syringe, and in order to send it to Department of Justice for further analysis, I will put it into what they call a vial and I'll empty it into the vial and in the process of doing that I'll take several drops and put it onto a testing plate, then I'll go ahead and use a Valtox test kit to test whatever substance it may have to see what it is."
On cross-examination, Detective Ward acknowledged the test was called "presumptive" because it was not conclusive "[a]t that point."
"[Defense counsel]: So let's say you have … an amount of nonnarcotic harmless liquid such as water in a syringe, a couple of milliliters, that would be sufficient to inject. Right?
"A. Yes.
"Q. And contained in those couple milliliters of water one tiny spec of methamphetamine, the minimum amount detectable by science. Let's say it's just one molecule, if that is contained in that water, as long as there is a detectable amount, not a usable amount, but a detectable amount by whatever technology is available contained within that water and able to pass into somebody's nervous system into their vein, that is a usable amount of methamphetamine?
"A. Yes, it would be."
Scott Bauer (Bauer) of the Department of Justice's Central Valley Crime Lab testified about his tests of the sample of liquid from the syringe. Bauer held both undergraduate and graduate degrees in biological sciences with a chemistry minor, had four months of intensive training in controlled substance analysis, passed a competency proficiency test, and conducted analysis in over 1,600 drug cases during his three years with the crime lab.
Bauer testified he received the sample of the liquid which Detective Ward removed from the syringe. The syringe was not sent to the crime lab because "[w]e don't allow syringes in the lab." Bauer conducted both a color test and an instrumental analysis. The color test is the presumptive test, and Bauer used "[p]art of a drop," which amounted to "approximately zero point one millileters of liquid," or 10-hundredths of a milliliter. Bauer used approximately two drops to conduct the instrumental analysis. This test uses a gas chromatograph mass spectrometer, which "allows you to separate a complex mixture of compounds in individual components, then it identifies components individually." Bauer testified that both tests detected methamphetamine. Bauer believed that about a drop, or 20-microliters, remained in the untested sample.
Bauer testified that he conducted qualitative tests for the presence of controlled substances, and did not test the strength or concentration of the methamphetamine suspended in the liquid drops.
"[Defense counsel]: So, if somebody was washing out a syringe or had water in a syringe, that liquid, the liquid is suspended in this matter. Right?
"A. I didn't test for that; I just test for controlled substances.
"Q. Okay. So the liquid, the transparent liquid you tested is some liquid.
"A. It's some liquid. That is all I can tell you. [¶]…[¶]
"Q. So based on your expertise and your training if somebody had water in a syringe to clean it, and that syringe at some time in the past was used to contain methamphetamine, and used over again, is it possible this tiny amount, this millionth of a gram dissolved into that amount of water, shows up on your test as –
"A. That is a possibility. I can't discount that.
"Q. --positive for a controlled substance?
"A. (Witness nods head.)
"Q. So, for all you know that could be water containing one-millionth of a gram of methamphetamine?
"A. That is possible.
"Q. If it were possible to use one-millionth of a gram of methamphetamine, if –it's possible that one-millionth of a gram of methamphetamine can exist in solid form. Right?
"A. Yes.
"Q. Would that be detectable to the naked eye?
"A. No.
"Q. Only through a microscope?
"A. It depends on its form. There is too many variables involved to say if you can actually say."
Defense Evidence
Billy May, appellant's brother, was the only defense witness. Billy testified he had been driving the white Honda for about four days before appellant was arrested. "I was supposed to be buying it from a guy that I know." The seller was Rudy Lopez, and Billy agreed to pay around $600. Billy testified the car had two doors. He was not sure it if had a radio. Billy made a $200 downpayment, and the seller was "supposed to show up within a week and, you know, with title and all this stuff, and I was to finish paying it off." Billy testified "we were all high" when he bought the car. Billy did not know the Honda was stolen, and appellant had nothing to do with the car.
Billy testified that he drove the Honda to his mother's house, and arrived about 20 minutes before Deputy Thompson. Appellant was there but he could not go into the house because he was fighting with their sister. Appellant got into the car to clean up, and used the rear view mirror to comb his hair. Appellant also borrowed Billy's jacket because it was cold. Billy was trying to help appellant because he was "roughing it." Billy admitted he was using drugs at the time, and forgot that he left a syringe in that jacket.
"Q. Well, are you addicted to meth?
"A. No. It's not addicting.
"Q. It's not? You can take it or leave it?
"A. I don't know anyone who is addicted on meth."
Billy testified that he usually loaded about half a syringe to get a hit of methamphetamine. Billy washed out the syringes to use again, but misplaced the one left in his jacket because "after I do it, I get going pretty fast and I forget where I put things." Appellant was still wearing Billy's jacket when he was arrested.
"Q. So if this [syringe] had just a couple of little drops in it, would that be loaded up and ready to go or would you be pretty much done with it?
"A. I'd say it's probably done with."
Billy admitted that he was with James Wood and Steve Mackelroy when Deputy Thompson arrived, and they were "[j]ust looking in the trunk." Billy testified there were some shoes and exercise equipment in the trunk when he bought the car. Patricia Mejia was also there. They were just friends who came by to visit.
Billy initially testified that he could not remember if he spoke to a deputy that night. Billy then testified that he never gave a statement to any deputy. Billy conceded that he learned about appellant's arrest and the Honda's stolen status that night. He never said anything because he did not know exactly why appellant was arrested, and he was "not real fond of going to jail." Billy was afraid he would go to jail because he bought a stolen vehicle.
"Q. And so better to let your brother stay in jail, is that it, rather than you be arrested?
"A. I was cowardly, wasn't I."
Rebuttal Evidence
Deputy Thompson testified the white Honda had four doors. Thompson also testified that he interviewed Billy May that night. He advised Billy of the Miranda warnings and Billy agreed to answer questions. Thompson asked Billy what he was doing at the scene. Billy said he had been standing next to the open trunk. Thompson asked why he was standing there and also asked other questions to determine his involvement, but Billy refused to answer any more questions. Billy never said who was driving the car.
Appellant was convicted of count I, receiving a stolen vehicle, count II, possession of methamphetamine, and count III, misdemeanor possession of a syringe. On appeal, he contends there is insufficient evidence to support counts I and II, and the court improperly found the five prior prison term enhancements true and imposed the upper term.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE OF RECEIVING A STOLEN VEHICLE
Appellant contends there is insufficient evidence to support his conviction in count I for receiving a stolen vehicle, that while Deputy Thompson observed some suspicious circumstances, there was no evidence that appellant drove the Honda, knew the Honda was stolen, or was in the Honda aside from the one instance described by Billy May.
We begin with the well-settled standards to assess the sufficiency of the evidence to sustain a criminal conviction. The reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that 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. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th. 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on "'isolated bits of evidence.'" (People v. Johnson, supra, at p. 577; People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.) Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (Ibid.; People v. Stanley (1995) 10 Cal.4th 764, 792-793; People v. Bean (1988) 46 Cal.3d 919, 932-933.)
An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) It must not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Pitts (1990) 223 Cal.App.3d 606, 884.) Furthermore, an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Jackson (1992) 10 Cal.App.4th 13, 21; People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) An appellate court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In count I, appellant was convicted of receiving a stolen vehicle in violation of section 496d, subdivision (a), which states in part:
"Every person who buys or receives any motor vehicle ... that has been stolenor that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle ... from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in the state prison ...."
A conviction for this offense requires proof that (1) the vehicle was stolen; (2) the defendant knew the vehicle was stolen; and (3) the defendant had possession of the stolen vehicle. (People v. Land (1994) 30 Cal.App.4th 220, 223 (Land).) While guilty knowledge is an essential element of the offense, it is not necessary to show that the defendant was present when the property was stolen, or that he was told directly that it had been. Proof of the knowledge element may be circumstantial and deductive. (People v. Boinus (1957) 153 Cal.App.2d 618, 621.)
"… '[P]roof of the crime of receiving stolen property requires establishing that the property in question was stolen, that the defendant was in possession of it, and that the defendant knew the property to be stolen.' [Citation.] Conscious possession of recently stolen property alone is insufficient to permit the inference defendant knew the property was stolen, however, 'the attributes of the possession--time, place, and manner--may furnish the additional quantum of evidence needed. [Citation.]' [Citation.] '[P]roof of knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendant's knowledge of the tainted nature of the property. This inference is so substantial that only "slight" additional corroborating evidence need be adduced in order to permit a finding of guilty. [Citation.]' [Citation.]" (People v. Reyes (1997) 52 Cal.App.4th 975, 984-985, fn. omitted.)
"Possession of the stolen property may be actual or constructive and need not be exclusive. [Citations.] Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property. [Citations.]" (Land, supra, 30 Cal.App.4th at pp. 223-224, fn. omitted.) If the defendant is the driver of such a vehicle, "there would be no question he had possession of the car. Some courts consider evidence the defendant was the driver of a stolen vehicle prima facie evidence of possession of that stolen property. [Citations.] However, operation of the vehicle is not the sine qua non of possession of a stolen vehicle. As noted, physical possession of the stolen property is not required. [Citations.] It is sufficient if the defendant acquires a measure of dominion or control over the stolen property. [Citation.]" (Id. at p. 223, fn. 2.)
Appellant declares there is "no evidence" that he bought or received the Honda, he knew it was stolen, or that he concealed or withheld the car from its owner, or aided in doing so, knowing it was stolen. "There is no evidence that he ever drove the Honda," that he aided and abetted anyone else to commit a crime, that he had knowledge of any perpetrator's unlawful purpose, or he intended to commit, encourage, or facilitate the commission of a crime. Appellant admits that his partial latent right thumbprint was found on the inside rear view mirror, but declares this evidentiary fact was explained by Billy May's story about appellant using the mirror to clean up and comb his hair.
Appellant suggests that the mere fact of suspicious circumstances, his eccentric behavior, and the presence of his fingerprint in the car, are insufficient to support his conviction. Appellant further suggests that Billy May and Victoria Krauss demonstrated that he was part of a "dysfunctional family who did not like each other. Despite their initial hesitation, it is impressive that ultimately Billy and Victoria did give strong pro-defense testimony," that Victoria "never saw appellant drive the Honda on December 10, and only his black Toyota prior thereto," and she believed Billy May had taken the Honda but did not say anything because she was drunk and did not get along with appellant.
Appellant's arguments are specious by any measure. First, it is undisputed that Megan Neely's white Honda was stolen on the afternoon of December 6, 2004, and recovered in the driveway of the Canal Street residence on the evening of December 10, 2004. The stereo and CD player were missing, the plastic frame around the equipment was damaged, and wires were dangling from the dashboard. Appellant's right thumbprint was recovered from the inside of the rear view mirror.
Second, appellant's reliance on Billy May's defense testimony is misplaced when that testimony is reviewed against the entirety of the record. Billy May testified he was driving around in the Honda, arrived at his mother's house, and appellant got into the car to comb his hair and clean up about 20 minutes before Deputy Thompson arrived. Billy's statement stands in stark contrast to appellant's statement to Thompson: that appellant walked over to his relatives' house, he did not contact anyone, he decided to sleep under the tree, the white Honda was not there when he went to sleep, and he did not notice the car until Deputy Thompson woke him up.
Third, appellant's own statement was seriously undermined by Deputy Thompson's observations when he arrived at the Canal Street residence. Appellant was not asleep under the tree, but instead he was standing inside the open driver's door of the white Honda, in such a position that he could have easily slid into the driver's seat. When Thompson approached from the passenger side, appellant immediately crouched down to the ground, clearly hiding from the deputy. When Thompson interviewed appellant, he falsely identified himself, and acted as if he was half-asleep when Thompson asked about the white Honda. When Thompson turned his attention away from appellant and spoke to another deputy, he noticed that appellant acted fine and alert. Appellant eventually claimed he went to sleep on the wet leaves and never saw the car. Thompson testified appellant's clothes were clean and dry, even though the leaves and ground were covered with condensation on that December night.
Fourth, appellant asserts there is no evidence that he ever drove the car or was in possession of it. Appellant ignores Deputy Thompson's testimony about his interview with Victoria Krauss that night. Krauss stated that she had seen appellant driving and in possession of the white Honda for the three previous days, it had been parked in front of her house during that time, she believed the car was stolen, and she was going to call the authorities the next morning. Krauss never said that Billy May was driving the car, or that she had never seen appellant in the car. Appellant discounts Krauss's statements to Thompson as the result of their dysfunctional family, and Krauss's intoxication and anger at him. However, Thompson testified that Krauss was not under the influence or intoxicated in any way when he interviewed her that night, and she spoke clearly when she answered his questions.
Fifth, appellant cites to Billy May's trial testimony, that he was driving the car and appellant just used the mirror to comb his hair, as explaining the presence of his thumbprint on the mirror, and characterizes the testimony of Billy and Victoria Krauss as "impressive." The credibility of both witnesses, however, was subject to impeachment: Krauss insisted she was drunk that night, but Deputy Thompson testified that she did not appear intoxicated in any way and answered his questions clearly. Billy claimed appellant just got into the car to comb his hair, but appellant claimed he never even saw the car when he arrived at the house, he immediately went to sleep on the wet leaves under the tree, even though his clothing was otherwise dry, and he never saw the car until he woke up and saw Deputy Thompson. Billy also claimed that the white Honda was a two-door vehicle, he was not sure if it had a radio, and he did not know it was stolen. Deputy Thompson testified the Honda was a four-door sedan, and Megan Neely testified the radio had clearly been removed from the front console, the plastic frame around the radio had been damaged, and there were wires dangling from the dashboard.
There is nothing inherently improbable about the testimony and evidence in support of appellant's conviction for receiving a stolen vehicle. Indeed, the direct and circumstantial evidence is overwhelming to establish the white Honda was stolen on December 6, 2004, and appellant was in possession and driving the recently stolen Honda for three days prior and including December 10, 2004. There is also strong circumstantial evidence appellant knew the vehicle was stolen, based on his possession of recently stolen property, his evasive behavior when he saw Deputy Thompson approach, his statement at the scene, which was wildly inconsistent with Thompson's own observations, the actual condition of the car, and Krauss's statements to Deputy Thompson that night. Moreover, Thompson was subject to cross-examination as to the accuracy of his notes and memory of the incident, and the jury was able to evaluate his credibility, along with that of Billy May and Victoria Krauss.
Appellant's reliance on fragments of exculpatory testimony from Billy May and Victoria Krauss is misplaced, and fails to acknowledge the serious credibility problems with their exculpatory testimony in comparison with the direct evidence of the actual situation at the Canal Street residence, and their prior statements to Deputy Thompson. These credibility conflicts raised disputed factual questions for the jury, the jury resolved these conflicts and rejected their testimony, and the jury's findings are supported by substantial evidence.
II.
SUBSTANTIAL EVIDENCE OF POSSESSION OF METHAMPHETAMINE
Appellant next contends there is insufficient evidence to support his conviction in count II for possession of methamphetamine, because there could have only been a miniscule or trace amounts of methamphetamine in the liquid sample from the syringe for testing.
As set forth ante, in determining the sufficiency of the evidence, we review the entire record to determine whether the evidence was reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Bolin, supra, 18 Cal.4th at p. 331.) The standard is the same where the People rely primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) The trier of fact may reasonably rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless '"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, 18 Cal.4th at p. 331.)
In count II, appellant was convicted of possession of methamphetamine without legal authorization, in violation of Health and Safety Code section 11377, subdivision (a). "The essential elements of possession of a controlled substance are 'dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.'" (People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Morales (2001) 25 Cal.4th 34, 41 (Morales).) Each of these elements may be established by circumstantial evidence. (Morales, supra, at p. 41.) A usable amount of a controlled substance is an amount sufficient to be used in any manner customarily employed by users of the substance. (People v. Piper (1971) 19 Cal.App.3d 248, 250.)
Appellant asserts the evidence is insufficient to support his conviction for possession, and there is no evidence he knew of the narcotic's presence or its nature as a controlled substance because Billy May mistakenly left the syringe in his jacket, Billy testified the syringe was probably washed out and he left it in his pocket when he was done with it. Billy testified appellant borrowed the jacket about 20 minutes before Deputy Thompson arrived, and the syringe was still in the jacket.
As noted in section I, ante, however, the accounts offered by appellant and Billy May are wildly inconsistent with the scene observed by Deputy Thompson. Thompson testified appellant was standing between the open driver's door and the car, and immediately crouched behind the door as Thompson approached. Appellant claimed he walked to the house earlier that night, he did not contact any of his relatives, he did not see the white car, he went to sleep on the wet leaves under the tree, and he only saw the white car when Thompson woke him up. Billy testified that appellant stopped by the house about 20 minutes before Thompson arrived, Billy was already there in the white Honda, appellant did not go inside the house because he did not get along with the family, appellant got into the white Honda to comb his hair and clean up, and Billy gave appellant his jacket to help him out. Billy also claimed he mistakenly left the syringe in the jacket pocket, he probably washed out the syringe, and he was probably done with it. As explained ante, however, these conflicting accounts presented a disputed factual issue for the jury to resolve, Billy's testimony was subject to impeachment on these issues, the jury clearly rejected Billy's version of the entire incident, such a finding is not inherently improbable, and the jury's factual findings are supported by substantial evidence.
Appellant concedes that the liquid in the syringe was tested twice, and both tests were positive for methamphetamine. However, appellant relies on People v. Fein (1971) 4 Cal.3d 747 (Fein) (disapproved on other grounds in People v. Palaschak, supra, 9 Cal.4th at pp. 1241-1242) and People v. Leal (1966) 64 Cal.2d 504 (Leal) for the contention that useless traces or residues cannot constitute a usable amount of methamphetamine. Appellant asserts the testimony of Deputy Thompson, Detective Ward, and Mr. Bauer established the syringe only contained a useless trace, residue, or miniscule amount of methamphetamine, there was no evidence of the purity of the methamphetamine detected in the sample taken from the syringe, and that "1/1,000,000[th] of a gram is obviously neither 'sufficient to be used as a controlled substance' (CALJIC 12.00), nor 'sufficient to be used in any manner customarily employed by users of the substance.' (CALJIC 12.32.)" Appellant also cites Billy May's testimony that if the syringe only contained a couple of little drops, it was probably done with. Appellant thus contends there is insufficient evidence the syringe contained a usable amount of methamphetamine.
Appellant's reliance on Fein and Leal is misplaced because the holdings of these cases was undermined and refined by People v. Rubacalba (1993) 6 Cal.4th 62 (Rubacalba). Appellant insists Leal and Fein have not been criticized, so we feel compelled to quote at length from Rubacalba:
"In People v. Leal (1966) 64 Cal.2d 504, the defendant possessed 'a small spoon on which was encrusted one-half grain (approximately 32 milligrams) of crystallized substance later stipulated to contain heroin.' (Id. at p. 505.) We found that 'in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption ... does not constitute sufficient evidence in itself to sustain a conviction.' (Id. at p. 512, italics in original.) We remanded the case, in which a jury had been waived, to the trial court to determine whether the 'residue was usable for sale or consumption.' (Ibid.; see also People v. Fein (1971) 4 Cal.3d 747, 754 ['It is now well established that evidence of useless traces or residue of narcotic substances do[es] not constitute sufficient evidence to sustain a conviction for possession of narcotics'].)
"With one possible exception, discussed below, the decisions construing Leal limit its holding to substances useless in form or quantity. There is no requirement that any particular purity or potential narcotic effect be proven.
"Typical is People v. Karmelich (1979) 92 Cal.App.3d 452, 456, where the court held: 'The decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found; it does not extend to a case such as this ... where the presence of heroin itself, not a mere blackened residue on a spoon, was discovered.' (See also People v. Camp (1980) 104 Cal.App.3d 244, 249 [following Karmelich]; People v. Mardian (1975) 47 Cal.App.3d 16, 45 ['the prosecution need not show that the quantity possessed is capable of producing a narcotic effect on the user']; People v. Schenk (1972) 24 Cal.App.3d 233, 238-239 ['We reject the contention that the crime of possession of a restricted dangerous drug requires that the quantity of the drug be sufficient to produce a drug effect']; People v. Pohle (1971) 20 Cal.App.3d 78, 82 ['there is no requirement that evidence be produced as to the quantity of a specific ingredient within the contraband']; People v. Piper (1971) 19 Cal.App.3d 248, 250 [rejecting defendant's claim that a 'quantitative analysis of the marijuana [must be] made to establish the particular marijuana he possessed had a potential to produce a narcotic effect on one using it'].)
"The chemical analysis of the material possessed need only establish the existence of a controlled substance. A quantitative analysis establishing the purity of the controlled substance is not required. (People v. Karmelich, supra, 92 Cal.App.3d at p. 455 [chemist testified he did not perform a quantitative analysis, and could not say whether the substance contained more than one-tenth of 1 percent heroin]; People v. Harris (1971) 15 Cal.App.3d 498, 501 ['the expert did not test for, and did not testify as to, the purity of the substance, although it admittedly was adulterated']; People v. Carmical (1968) 258 Cal.App.2d 103, 108, 107 [no 'quantitative chemical analysis' needed even though the chemist 'was unable to state the amount of pure heroin present in the powder' and 'the possibility exists that only traces of heroin were present in the mixture'].)
"These cases make clear, and we agree, that the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven. [¶]…[¶]
"… As discussed above, the amount of cocaine needed to produce a narcotic effect and the purity of the substance need not be proven in order to establish a usable quantity. To be sure, the concentration of the substance might in some situations be relevant to a different element of the crime of possession--knowledge. (See generally Annot., Minimum Quantity of Drug Required to Support Claim That Defendant Is Guilty of Criminal 'Possession' of Drug Under State Law (1992) 4 A.L.R.5th 1, 22, 110-111.) As the trial court correctly instructed the jury, only knowing possession of controlled substances is proscribed. (People v. Leal, supra, 64 Cal.2d at p. 506; People v. Carmical, supra, 258 Cal.App.2d at p. 107.)
"'It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic. Guilt or innocence on a charge of illegal possession may not be determined solely by the skill of the forensic chemist in isolating a trace of the prohibited narcotic in articles possessed by the defendant. As forensic science, measuring devices and techniques improve, smaller and smaller amounts of residue are required for the chemist to detect the presence of the narcotic. The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.' (People v. Aguilar (1963) 223 Cal.App.2d 119, 122-123, italics added, quoted in People v. Leal, supra, 64 Cal.2d at p. 509.)
"As the italicized language in the previous paragraph implies, the form, not the purity, of the substance, is most pertinent to the question of knowledge. But purity may in some cases also be relevant. If, for example, the substance was found in a package of talcum powder, testimony that it contained only a microscopic amount of cocaine might be relevant to defendant's knowledge of the presence of the contraband...." (Rubacalba, supra, 6 Cal.4th at pp. 64-67.)
Appellant acknowledges the holding in Rubacalba but asserts it "certainly need[s] elucidation," cites to several cases which followed Fein and Leal, and suggests several ways in which to improve the Supreme Court's rationale in Rubacalba. We note that appellant relies on cases decided before Rubacalba, and we decline his invitation to overrule or "clarify" that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) We conclude the evidence was sufficient to support appellant's conviction for possession of methamphetamine. Detective Ward testified the syringe contained a usable amount; Mr. Bauer testified that the two tests were positive for methamphetamine; the witnesses were subject to extensive cross-examination about the nature of their tests and the exact amount of liquid they tested; and the prosecution was not required to prove any particular purity or potential narcotic effect. (Rubacalba, supra, 6 Cal.4th at p. 65.)
Appellant notes that while he admitted there was a syringe in his pocket, he was not sure of the contents and said it probably contained methamphetamine. Appellant asserts the uncertainty of his own statement is consistent with Billy May's claim that he accidentally left the syringe in the jacket he loaned to appellant, Billy already used up the drugs in that syringe, and the syringe did not contain a usable amount. Appellant's claimed uncertainty about the syringe's contents could also have been consistent with his other attempts to minimize his involvement: he crouched down behind the white Honda when Deputy Thompson arrived, he gave a false name to Thompson, he claimed just to have been sleeping on the wet leaves and he claimed he never saw the white Honda until he woke up. As with the other issues in this case, the jury was presented with disputed factual questions about the witnesses' credibility and resolved the issues against appellant, and the jury's findings are supported by substantial evidence.
III.
IMPOSITION OF THE AGGREGATE SENTENCE
Appellant asserts the court improperly made factual findings of aggravating circumstances in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham)). Appellant further argues that Shepard v. United States (2005) 544 U.S. 13 (Shepard) precluded the court from relying upon information in the probation report to find aggravating factors. Appellant also asserts the court improperly relied on his prior prison commitments to impose both the upper term for count I and 5 one-year terms for the prior prison term enhancements.
Appellant's contentions are without merit. As to Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) In Blakely, the high court stated that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]" (Blakely, supra, 542 U.S. at p. 303, italics in original.) In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on California's Determinate Sentencing Law (DSL) and concluded that its sentencing scheme was constitutional. "[T]he judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Black I, supra, at p. 1244.)
In Cunningham, the United States Supreme Court overruled Black I and held: "In accord with Blakely, ... the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum. [Citation.]" (Cunningham, supra, 127 S.Ct. at p. 868.) Cunningham invalidated the California DSL to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. 871.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), cert. den. sub nom. Black v. California (Jan. 14, 2008, No. 07-6140) [2008 U.S. LEXIS 1051], the California Supreme Court addressed the issues raised by Cunningham and held:
"[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.... [¶] ... Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum.'" (Black II, supra, 41 Cal.4th at p. 813, fn. omitted.)
Black II further held: "[I]mposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) This principle applies even where the trial court relied on other factors in aggravation of the term. (Ibid.)
In Black II, for example, the record contained substantial evidence of "'prior convictions ... [that were] numerous or of increasing seriousness.'" (Black II, supra, 41 Cal.4th at p. 818.) Similarly, where the record supports the service of a prior prison term, that recidivist factor also permits judicial factfinding imposing an upper term sentence. (Ibid.)
At the sentencing hearing in the instant case, the court reviewed the probation report and made the following findings:
"As to Count I there are absolutely no factors in mitigation, and the court must be guided by those circumstances in aggravation. [Appellant's] prior convictions are numerous. He was on parole at the time the crime was committed, and had only been on parole for a very short period of time. His prior performance on parole was unsatisfactory; and he has in fact served five prior prison terms, also a factor in aggravation."
As in Black II, the trial court's imposition of the upper term in this case did not violate Cunningham because the court relied upon the aggravating circumstance that appellant's prior convictions were numerous, such that "at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements." (Black II, supra, 41 Cal.4th at p. 806.) As Black II explained, only a single aggravating factor is required to impose the upper term. (Id. at pp. 813, 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.) The court properly imposed the upper term because it relied on appellant's record of prior convictions, and any additional factfinding did not violate his right to jury trial. (Black II, supra, 41 Cal.4th at p. 815.)
Appellant asserts, without analysis, that the matter must be remanded because of Cunningham error, that People v. Sandoval (2007) 41 Cal.4th 825, was wrongly decided, and that another jury cannot be impaneled to reconsider the aggravating factors to impose the upper term. Sandoval addressed the application of a harmless error analysis to situations where the trial court imposed the upper term based on aggravating circumstances that were not within the exceptions set forth in Blakely, i.e., not based upon the defendant's criminal record, admitted by the defendant, or established by the jury's verdict. (People v. Sandoval, supra, 41 Cal.4th at pp. 837-838.) We have found the trial court herein properly relied upon an aggravating circumstance within an exception set forth in Blakely, and his Sandoval arguments are not applicable to this case.
Next, appellant relies on Shepard, supra, 544 U.S. 13, and argues the trial court cannot rely on information in the probation report to find aggravating factors. This argument is also without merit.
"In Shepard, our highest court held that inquiry into the facts underlying a prior conviction under the Armed Career Criminal Act (18 U.S.C. §§ 922(g)(1) & 924(e)(1)) (ACCA) to determine whether a guilty plea admitted elements of a violent offense, 'is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.' (Shepard, supra, 544 U.S. at p. 26 [125 S.Ct. at p. 1263].) In so holding, the court declined to permit a federal judge to consider police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, a violent felony, in that case, a generic burglary. (Id. at 1257.)" (People v. Gonzales (2005) 131 Cal.App.4th 767, 773 (Gonzales).)
As explained in Gonzales, Shepard's holding is not applicable to the instant situation:
"… (1) the Shepard Court was interpreting a federal statute, the interpretation of which is not binding on the interpretation of California law[] [citation][;] (2) unlike the ACCA, California law specifically requires a defendant be afforded a trial on the issue of whether he has prior convictions [citation]; (3) unlike the ACCA, California law requires a jury trial to make findings regarding prior convictions that bring a defendant under the three strikes sentencing scheme [citation]; (4) the right to a jury trial and a finding beyond a reasonable doubt are rights already secured by California's process [citation]; and (5) Shepard did not address the use of a preliminary hearing transcript to prove a prior conviction." (Gonzales, supra, 131 Cal.App.4th at p. 775.)
In People v. McGee (2006) 38 Cal.4th 682 (McGee), the California Supreme Court rejected the argument that Shepard and Apprendi mandated the right to a jury trial on the truth of prior conviction allegations:
"… In Shepard, the high court addressed whether, under the federal Armed Career Criminal Act (ACCA) (18 U.S.C., § 924(e)), a sentencing court may look to police reports or complaint applications in determining whether a guilty plea in an earlier criminal proceeding formed the basis for a conviction of 'generic' burglary, qualifying the defendant for a minimum 15-year prison sentence under the ACCA. In Shepard, a majority of the high court held that 'a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.' (Shepard at p. 16.) In reaching this conclusion—and rejecting the assertion that the sentencing court properly could consider all the documents contained within the record of the prior criminal proceeding—the majority opinion in Shepard stated, in the course of its analysis, that '[w]hile the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones [v. United States [(1999)] 526 U.S. 227] and Apprendi, to say that Almendarez-Torres [v. United States (1998) 523 U.S. 224] clearly authorizes a judge to resolve the dispute. The rule of reading statutes to avoid serious risks of unconstitutionality, see Jones, supra, at 239, ... therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea ....' (Shepard, supra, 544 U.S. at pp. 25-26, italics added; [citation].)
"Although the Shepard decision may suggest that a majority of the high court would view the legal issue presented in the case before us as presenting a serious constitutional issue, the high court's decision did not purport to resolve that issue. The issue before the high court in Shepard was resolved as a matter of statutory interpretation, and the court did not purport to decide whether a state is constitutionally precluded from permitting a court to conduct the kind of examination of the record of a prior criminal proceeding that occurred in the case before us in determining whether a conviction constitutes a qualifying prior conviction for purposes of enhancement under a state sentencing statute. Accordingly, we believe that Shepard fails to establish the validity of the Court of Appeal's application of Apprendi."(McGee, supra, 38 Cal.4th at pp. 707-708, fns. omitted.)
Finally, the trial court did not engage in any impermissible dual use of facts when it decided to impose the upper term for count I, and 5 one-year terms for the prior prison term enhancements. As explained ante, the trial court herein validly relied on appellant's numerous prior convictions to impose the upper term, separate and apart from the fact of appellant's prior prison terms, and that single aggravating factor was sufficient to impose the upper term.
IV.
THE PRIOR PRISON TERM ENHANCEMENTS
As noted ante, the information alleged appellant suffered one prior strike conviction, and served five prior prison terms, all of which were based on prior convictions in Stanislaus County. We now separately address an issue raised within appellant's challenge to his aggregate sentence, as to the validity of these special allegations. In his opening brief, in the midst of his discussion about Blakely, Apprendi, and Shepard, appellant asserts:
"It is also quite doubtful there were more than three or four such valid priors.... Only priors 1, 2, 3, 5, and 6 appear facially valid."
Appellant contends that "prior # 4" does not exist, based on a declaration from the superior court clerk, and there is "uncertainty as to whether one other of these priors should have been included." Appellant asserts the court should have imposed "no more than 3 or 4 years" for the prior prison term enhancements instead of 5 one-year terms.
Respondent failed to recognize or address this specific contention in its brief. In his reply brief, appellant asserts there is no evidence for the prior conviction alleged to have occurred on July 15, 1992, in docket No. 242631, and the record is "unclear" whether there are three or four remaining prior prison term enhancements.
The trial court conducted a bifurcated trial on the truth of the special allegations, reviewed the documentary evidence introduced by the prosecution, noted appellant had admitted several of the prior prison term allegations in previous cases, and found all allegations true.
Based on the specific challenge raised in appellant's opening brief, we will review the special allegations in the information, and the evidence introduced by the prosecution at the bifurcated trial on the truth of those allegations, to determine if the court's findings are supported by the evidence.
We begin with the information's allegation that appellant suffered one prior serious or violent felony conviction within the meaning of the three strikes law, based on his conviction for attempted first degree burglary (§§ 664/459) on or about August 24, 1988, in docket No. 232465. In support of this allegation, the prosecution introduced exhibit No. 9, which consisted of an information filed on May 5, 1988, in docket No. 232465, alleging appellant committed attempted burglary of an inhabited dwelling on or about March 31, 1988. The information further alleged one prior prison term enhancement, based on his conviction for burglary and possession of a dangerous weapon (§ 12020) on or about July 28, 1982. The documentary exhibits further reflect that on July 28, 1988, appellant pleaded guilty to attempted burglary and admitted the prior prison term enhancement. On August 24, 1988, he was sentenced to three years in state prison. Thus, the court's true finding on the prior strike allegation is supported by substantial evidence.
The information also alleged appellant served five prior prison terms within the meaning of section 667.5, subdivision (b). The first allegation was based on his conviction and sentence for possession of a dangerous weapon, in violation of section 12020, on July 28, 1982, in docket No. 183089. The documentary exhibits reflect that in docket No. 183089, appellant pleaded guilty to possession of a dangerous weapon on June 21, 1982, and was sentenced to two years in prison (to run concurrent to another felony term) on July 28, 1982. Also, as noted ante, the documentary exhibits reflect that in docket No. 232465, appellant admitted a prior prison term enhancement based on his conviction and sentence for possession of a dangerous weapon on or about July 28, 1982. The court's finding on this allegation is supported by substantial evidence.
The next prior prison term allegation was based on appellant's conviction for sale of a controlled substance in violation of Health and Safety Code section 11352, on or about August 4, 1988, and the sentence imposed on August 24, 1988, in docket No. 232468. The documentary exhibits reflect that on July 7, 1988, appellant was convicted of sale of a controlled substance. On August 4, 1988, he was sentenced to six years in prison. Again, the court's true finding is supported by the evidence.
The information further alleged appellant was convicted of possession of a controlled substance in violation of Health and Safety Code section 11377, on July 15, 1992, in docket No. 242631. Appellant asserts there is no evidence to support this allegation, based on a declaration signed by a superior court clerk on October 28, 2005, and filed in this court on November 2, 2005, in response to this court's augmentation order. The deputy clerk declared:
"... [A] copy of [appellant's] prior, dated July 15, 1992, Health and Safety Code section 11377 convictions, docket number 242631. I have done a thorough search of the Criminal unit for the file and have found that no charges were filed therefore, no such conviction exists."
Also on November 2, 2005, a supplemental clerk's transcript was filed with this court, which contain the documentary exhibits introduced at trial. These include an abstract of judgment in docket No. R242631, reflecting that on July 8, 1992, appellant pleaded guilty to possession of a controlled substance in violation of Health and Safety Code section 11377, and on the same day, he was sentenced to one year four months in prison. The California Department of Corrections chronological history indicates appellant was received at state prison on July 15, 1992. Thus, there is substantial evidence to support the prior prison term allegation based on appellant's conviction and sentence in docket No. 242631.
The next allegation is based on another conviction for possession of a controlled substance in violation of Health and Safety Code section 11377, on December 23, 1993, in docket No. R268777. The documentary exhibits reflect that on December 23, 1993, appellant pleaded guilty in docket No. R268777, to violating Health and Safety Code section 11377, admitted one prior prison term enhancement, and was sentenced to three years in prison.
Finally, the information alleged appellant was convicted of felony hit and run, in violation of Vehicle Code section 20001, on January 5, 1996, in docket No. 44776. The documentary exhibits contain an abstract of judgment in docket No. 44776, that appellant was convicted of felony hit and run on December 5, 1995, and was sentenced to four years in prison on January 5, 1996.
There is overwhelming evidence to support the trial court's true findings on the special allegations.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, J., CORNELL, J.