Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County, Super. Ct. No. MA036496, Charles A. Chung, Judge. Affirmed as modified as to Defendant and Appellant Kyle L. McCombs. Affirmed as to Defendant and Appellant Dwayne E. Harris.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Kyle L. McCombs.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant Dwayne E. Harris.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendants and appellants Kyle L. McCombs and Dwayne E. Harris of voluntary manslaughter. Although there was no gang allegation, the trial court admitted evidence that defendants belonged to a gang. On appeal, defendants contend that admission of that evidence was prejudicial error. Defendant McCombs also contends that a five-year sentence imposed under Penal Code section 667, subdivision (a)(1), should be reversed. Defendant Harris contends that his upper term sentence violates Cunningham v. California (2007) 549 U.S. 270. We hold that the trial court did not err by admitting the gang evidence. But we also hold that the trial court acted in excess of its jurisdiction in imposing a five-year sentence under section 667, subdivision (a)(1), as to defendant McCombs, and we therefore reverse that sentence. We otherwise affirm the judgments as to both defendants.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
Ronald Carmichael owns a gun shop in Lancaster. Eddie Wheston, “Little Ray Ray,” was a regular customer. He once bought a black nine millimeter semiautomatic handgun from Carmichael. On December 8, 2005, Wheston rented two sets of ear muffs, safety glasses, targets, and nine millimeter ammunition from Carmichael.
That same day, Robert James went to the apartment Wheston sometimes stayed at with Trisha Thomas and her baby and mother (Claudia Thomas). Wheston was outside talking on his cell phone. Wheston asked James to drive him to nearby Boyden Street to meet some “homies.” Wheston took his gun because he didn’t trust his homies. When they got to Boyden, Wheston got out of the car and walked to three people, one of whom James recognized as “Scrappy.” Wheston and one of the men drove off in a gray sports utility vehicle (SUV). James called Wheston on his cell phone, and Wheston said he was okay.
James returned to Wheston’s apartment. He saw Wheston and two men who had been in the SUV walk to the apartment. The SUV was now parked down the street from the apartment. A few minutes later, James heard gunshots. The two men who had entered with Wheston came out and drove away in the SUV. Claudia Thomas and Howard Dobbs (Trisha Thomas’s boyfriend) came out of the apartment screaming that Wheston had been shot. James entered the apartment and found Thomas holding Wheston on her lap. Wheston suffered seven gunshot wounds, and he died as a result of his wounds. James checked Wheston to see if Wheston’s gun was still there, because James thought he saw one of the men who had just left holding it. Wheston did not have his gun. James and Howard Dobbs left, because they were both on parole. James later identified McCombs and Harris from photographic six packs.
During these events, Trisha Thomas was in the apartment. She heard Wheston say “ ‘mama’ ” and “ ‘get ‘em, Stella.’ ” Stella is Wheston’s dog. She then heard tussling noises. As she walked to the kitchen, she heard gunshots. Someone said, “ ‘Give me that, cuz.’ ” Wheston stepped out of the kitchen, struggling with a man who was holding a chrome and black gun, which was not Wheston’s gun. The man shot Wheston in the chest area. Thomas was unable to identify anyone.
In the kitchen, the washer or dryer was knocked over, and there was blood on the floor. Five expended nine millimeter casings were found in the kitchen. One .380 caliber casing was found in the apartment. Other than a broken portable scale, no drugs or drug paraphernalia were found in the apartment. No firearm was found, although an empty gun case and a box of ammunition from Carmichael’s gun shop were in the apartment.
Darrell Washington lived next door to Wheston. Washington considered himself Wheston’s mentor; he was trying to get Wheston to change his ways. He knew that Wheston carried a gun. On January 28, 2005, around 4:00 p.m., Washington saw Wheston. Washington noticed that Wheston’s jaw was swollen. Soon thereafter, Washington heard gunshots. He looked out his front door and saw a silverish SUV. He saw defendant Harris holding a black nine-millimeter gun and running to the passenger side of the SUV. Washington went to his back door from where he could see a side door to Wheston’s apartment. Washington saw smoke and heard “hollering.” Defendant McCombs, who had braided hair and was wearing a hooded gray sweater, came out of the door holding a chrome nine-millimeter gun. McCombs and Harris drove away in the SUV.
On the day of the shooting, Benford Wilson, who lived about one-half mile from Wheston, drove to a nearby liquor store. He saw two people run from a residence with guns, one of which was black and the other was chrome. The men got into a silver jeep. Wilson, although he gave a description of the men to the police, was unable to identify the defendants at trial.
During the early morning hours of January 29, 2005, Officer Troy Scutella was on patrol. He received a phone call concerning a shooting victim who had been admitted to a hospital. Officer Scutella went to the hospital and interviewed the shooting victim. It was defendant McCombs, although he told the officer his name was Christopher Sparks. McCombs told the officer that while at a park, three Hispanic men robbed him. During the course of the robbery, he was shot.
Around the time Wheston was shot, defendant McCombs, in January or February 2005, called Dannette Fernandez, who was then defendant Harris’s girlfriend. McCombs wanted to know if she had talked to Harris recently. In tears, Harris called Fernandez one morning, around 2:00 a.m. He wanted her to pick him up in Palmdale. Then, in late February 2005, Harris called Fernandez regarding a murder in Palmdale; he asked her to check the local newspaper, because he thought he was in it. Harris told Fernandez he needed to leave.
Tanesia Benson told Detective Lankford that she dated defendant McCombs. On January 29, 2005, McCombs told Benson he had been shot at a house and needed a ride to Lancaster. She picked him up and drove him to the San Antonio Hospital. From jail, McCombs asked Benson to pick up the jeep.
Detective Steven Lankford investigated Wheston’s death. During his investigation, he found the location of a gray jeep that might be involved in the incident. When he found the vehicle, Tanesia Benson was walking to it, keys in hand. Detective Lankford found a receipt from a Jack-in-the-Box located within a couple of miles of the shooting. The receipt was dated January 28, 2005 (the day Wheston was killed) around 11:15 p.m. Also in the jeep was a document, dated January 29, 2005, from San Antonio Community Hospital’s emergency room. The document was for a patient who gave his name as Christopher Sparks. When defendant McCombs was taken into custody on February 3, 2005, he had a gunshot wound.
II. Procedural background.
In January 2007, defendants McCombs’s and Harris’s first trial began. The jury deadlocked on the lesser crime of second degree murder as to both defendants. The trial court therefore declared a mistrial.
A second trial commenced in April 2007. On May 7, the jury found both defendants not guilty of second degree murder, but guilty of voluntary manslaughter (§ 192, subd. (a)). The jury found true the allegation that a principal was armed with a gun during the commission of the offense (§ 12022, subd. (a)(1)).
The trial court sentenced defendant McCombs on May 31, 2007 to the upper term of 11 years for voluntary manslaughter, doubled to 22 years under the Two Strikes law. The court also sentenced McCombs to an additional five years under section 667, subdivision (a); one year under section 667.5, subdivision (b); and one year under section 12022, subdivision (a)(1). All sentences were imposed consecutively.
The trial court sentenced defendant Harris on June 28, 2007 to the high term of 11 years for voluntary manslaughter. The court also imposed a consecutive one-year term under section 667.5, subdivision (b), and a consecutive one-year term under section 12022, subdivision (a)(1).
DISCUSSION
I. The trial court did not err by admitting the limited gang evidence.
Although there was no gang allegation, the prosecutor was allowed to ask a witness about defendants’ possible gang ties to establish a basis for the witness’s concerns about testifying. Defendants contend that the trial court prejudicially erred by allowing the introduction of such evidence. We disagree.
A. Additional background.
1. The trial court’s ruling concerning gang evidence at the first trial.
Before the first trial in January 2007, the prosecutor noted that there was no gang allegation (the victim and defendants were members of the same gang), but he was concerned that some witnesses would recant. The prosecutor explained that any witness’s belief that the defendants are gang members might be a motive for recanting, and therefore “I should be able to question the witnesses regarding their beliefs about the defendants’ gang membership.” Defendants’ trial counsel countered that the prejudicial effect of introducing such evidence would outweigh its probative value and that any link between a witness’s motive for recanting and the defendants’ gang membership was speculative.
The trial court ruled that, in the absence of something more concrete, gang evidence would be excluded. But “[i]f one of the witnesses recants and minimizes and if on a further 402 it can be established that this witness at least stated at some point that he believed that he was dealing with gang members, then I will reconsider my ruling. [¶] In addition, if in the future there is evidence brought forward during a 402 that specifically one or more of the witnesses identified the defendants because they knew them from the gang and knew them by certain monikers and had known them through those affiliations, certainly that is as well. [¶] . . . [¶] So at this point I’m tentatively ruling that the gang evidence is not admissible because there’s not been enough of a factual showing. But, again, this will be an area that we certainly can revisit if more solid facts are brought forward.”
The trial court thereafter revisited the issue after the prosecutor made a proffer of what the witnesses would testify. As to Tanesia Benson, the court ruled that if she recanted her testimony, then her knowledge of defendants’ gang membership could come in. If she testified she had no loyalties to defendant McCombs, despite having dated him, then the prosecutor could try to establish an alternative basis for any bias, namely, his gang ties.
2. The admission of gang evidence at the second trial.
Before the start of the second trial, the trial court said that the only gang evidence that would come in is what came in during the first trial.
Robert James testified. On redirect examination, the prosecutor asked James whether he was afraid to testify. Over defendant Harris’s counsel’s objection, James said he was “somewhat” afraid for his girlfriend and for his family. But on recross examination he denied that anyone had threatened him or his loved ones. He also said that although he was in prison and other inmates don’t like “snitches,” he was not afraid of other inmates because he was in protective custody.
Tanesia Benson, who dated defendant McCombs in the latter part of January 2005, also testified in the prosecution’s case-in-chief. Benson responded to virtually almost every question with, “I don’t recall.” She did not, for example, recall whether in the latter part of January 2005 defendant McCombs asked her to pick him up in Lancaster, whether he had a gunshot wound to his leg for which she took him to the hospital, and whether he asked her to pick up a gray jeep. The following colloquy also took place:
“Q. . . . Did you tell Detective Lankford that Kyle McCombs hung out with the Pasadena Denver Lane gang and went by the moniker of ‘G’ Fox?
“A. I don’t recall.
“Q. Did you tell Detective Lankford that you had concerns for your safety because you believed Kyle McCombs was associated with a gang?
“A. I don’t recall.
“Q. Are you afraid of testifying here in court today because of your belief that Kyle McCombs is in a gang?
“A. I just don’t want to be here testifying.
“The court: The question is, are you afraid?
“[A.] Yes, I’m afraid.
“The court: All right. Folks, at this time the evidence that you have heard about any possible gang information is not offered for the truth of the matter asserted. It is not
to be used by you to infer guilt simply because of any belief on this witness’s part. It is relevant only as to her credibility.”
On cross-examination, defendant McCombs’s counsel asked:
“Q. Miss Benson, has anyone ever threatened you in this case?
“A. Yes.
“Q. Who?
“A. I don’t want to talk about it.
“The court: Who threatened you, ma’am?
“The witness: I don’t know who he was. [¶] . . . [¶]
“Q. . . . Was it Mr. McCombs?
“A. No.
“Q. Did he ever tell you not to come?
“A. Not that I recall.
“Q. I mean, Miss Benson, you don’t want to be here; right?
“A. No, I don’t.
“Q. And you have been forced to come through a subpoena[?] [¶] . . . [¶]
“A. Yes. You also—I was also told before that I wouldn’t have to come back here and I’m back again, and I was threatened the last time I came here. You guys can’t protect me. I’m scared. I don’t want to be here. I don’t have anything to say regarding this case. I just want to go home.
“Q. At the last time weren’t you threatened by a prosecution witness?
“A. I don’t know who he was.
“Q. But someone in the gallery; right?
“A. It was—I don’t know. Maybe, yeah. I guess he was sitting there.
“Q. Right. It wasn’t anyone from the defense.
“A. I don’t know who is who in this case. All I know is Kyle McCombs.
“Q. No one said anything to you from Kyle’s side. I mean, you don’t know who it is that talked to you?
“A. Right.
“Q. But it wasn’t Kyle. It wasn’t?
“A. No, it wasn’t Kyle.
“Q. Did you recognize him?
“A. No.
“Q. Was it anyone you had ever seen Kyle with before?
“A. Not that I know of.
“Q. At the last hearing that you testified to didn’t you do the exact same thing and say ‘I don’t recall’ over and over and over?
“A. Yes.”
Defendant McCombs then moved for a mistrial. He argued that asking about his gang membership violated the trial court’s ruling excluding gang evidence. The court responded that the witness had been allowed to testify at the first trial about her belief that McCombs was a gang member. The court also said that the fear was relevant for the purpose of evaluating the witness’s credibility. The court therefore denied the mistrial motion. But, to avoid the impression that someone associated with defendants threatened Benson, the parties stipulated that “at the conclusion of Tanesia Benson’s testimony at a brief hearing she represented being threatened by an individual who it was later determined to not be affiliated in any way with either Kyle McCombs or Dwayne Harris’s family or associates.”
Before the People recalled Detective Steven Lankford, the investigating officer, defense counsel for McCombs asked the trial court to preclude the prosecutor from asking him about the Pasadena Denver Lane gang. But because Tanesia Benson had essentially denied everything, the court said it could come in because it was relevant to her credibility. The court found that her inability to recall events was feigned.
Detective Lankford then testified. Benson told him she was afraid because McCombs was associated with the Pasadena Denver Lane gang and went by the name “G” Fox. The court instructed the jury, “Folks, at this time a couple of admonitions. One, all of the statements that this detective is testifying to that Miss Benson told him as coming from Mr. McCombs . . . is to be used only as to defendant McCombs, not to Mr. Harris. [¶] Second, the evidence that you just heard about, her fear and about any alleged association with Pasadena Denver Lane, is not to be considered for the truth of the matter asserted. It is not to be used to infer guilt on the part of Mr. McCombs. It is only relevant as far as it relates to Miss Benson’s credibility.”
Thereafter, the prosecutor asked whether Benson had expressed any “specific fears” to Detective Lankford during his investigation. Detective Lankford said that once Benson found out he was investigating a homicide and the jeep was used in a murder, “that heightened her fear.” The prosecutor then asked if Benson mentioned “any gang involvement” on defendant McCombs’s part. Detective Lankford replied, “I believe so. I believe she also mentioned that she knew that he had friends in a gang.” Benson said she knew McCombs was a gang member and she was afraid to ask him questions about his injury. On cross-examination, the detective acknowledged that Benson did not say anything about being afraid when she was first interviewed. But during a second interview she said she became afraid upon learning that the jeep was connected to a murder. She was afraid of going back to jail, having been recently released.
The prosecutor, in closing, argued: “They mentioned Tanisha Benson. Let me just say this about Miss Benson. Miss Benson has been terrified since day one. It wasn’t a threat that occurred at the end of the last trial. She was scared from day one. At the last trial before she was even threatened, she was up there saying she didn’t remember anything. She is scared to death. She is scared to death of the defendants, of defendant McCombs. She’s scared. [¶] And, you know, it’s really easy for us to sit here and say, well, if we were in her position, we would get up there and we would tell the truth and we would say what happened and we would do the right thing. And it’s real easy to say. But just keep in mind, the situation that she is facing or the situation that she perceives she is facing, to her, is life threatening. It’s a very scary, scary situation. So don’t—don’t let them minimize her—her fear or create the impression that somehow it’s not—it’s not warranted. It’s a real fear, and it’s a very real fear. You saw it with Robert James. I had to—he’s a grown man. I got to stand over here and ask him questions . . . . Some of these witnesses were very, very scared about being here, and that affected their testimony and the way they behaved.” During rebuttal closing argument, the prosecutor again referred to the witnesses’ fear: “They [defense counsel] discounted the fear of the witnesses that had to come into court and testify under these circumstances.”
B. The gang evidence was admissible.
“Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. [Citations.] . . . . [¶] However, gang evidence is inadmissible if introduced only to ‘show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]’ [Citations.] In cases not involving a section 186.22 gang enhancement, it has been recognized that ‘evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.]’ [Citations.] Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, ‘trial courts should carefully scrutinize such evidence before admitting it. [Citation.]’ [Citations.]” (People v. Avitia (2005) 127 Cal.App.4th 185, 192-193.) A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547.) The trial court’s ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
Although gang evidence should be excluded if there is no gang allegation and its probative value is minimal, matters, including gang evidence, having any tendency in reason to prove or disprove the truthfulness of a witness’s testimony may be considered by a jury. (Evid. Code, § 780; People v. Harris (1985) 175 Cal.App.3d 944, 957.) Matters that are relevant to a witness’s credibility include evidence that the witness is afraid to testify or is fearful of retaliation. (People v. Sapp (2003) 31 Cal.4th 240, 301; People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.) “It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.]” (Gutierrez, at pp. 1587-1588; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1368 [evidence that the witness was threatened by a reference to a gang was admissible because it went to the witness’s state of mind].)
Thus, gang evidence may be admissible on the issue of a witness’s credibility where a reasonable inference can be drawn that a witness is afraid to testify because the defendant belongs to a gang. For example, in People v. Harris, supra, 175 Cal.App.3d at page 957, a witness took the stand and either failed to respond to questions or stated he could not remember the answers. The witness, however, had previously told detectives he was afraid to testify because the defendants would shoot up his mother’s house if he did. Evidence that defendants belonged to a gang was then admissible on the issue of the witness’s credibility.
Although this case, unlike Harris, does not involve a direct threat made by a defendant against a witness, evidence that defendants belonged to a gang was nonetheless relevant to Tanesia Benson’s credibility. Benson dated defendant McCombs during the time of the shooting. She drove him to a hospital to have his gunshot wound treated, and, thereafter, picked up a vehicle involved in the incident, all at McCombs’s request. Benson was therefore a key witness who placed defendants at the scene of the crime. At trial, however, she responded to questions with a claimed inability to recall any events concerning McCombs, a claim the trial court found was feigned. The court therefore allowed the prosecutor to explore the possible basis for Benson’s refusal to testify by, first, asking Benson about her reticence, and, second, asking Detective Lankford about it.
The prosecutor first asked Benson two limited questions about McCombs’s gang membership: (1) whether she knew he hung out with a gang and went by “G Fox” and (2) whether she was concerned for her safety because of her belief McCombs was associated with a gang. She answered she did not recall. Thereafter, on cross-examination, she clarified that she had been threatened by someone unconnected to the defendants and having no stated connection to a gang. The prosecutor next asked Detective Lankford if Benson told him she was afraid because of defendant McCombs’s gang association. Although Detective Lankford said that Benson mentioned that McCombs had friends in a gang, on cross-examination the detective agreed that Benson did not initially say anything about being afraid and later linked her fear to going back to jail.
The gang evidence that was introduced was thus very limited in scope. It was brief and connected solely to Benson’s fear in testifying. Moreover, the trial court twice—once during Benson’s testimony and once during Detective Lankford’s testimony—specifically instructed the jury it could not either consider the gang evidence for the truth of the matter asserted or to infer guilt. The jury was instructed that the evidence was relevant only to Benson’s credibility.
Defendants, however, suggest that the gang evidence was great in scope and impact, and it was cumulative. They point to the testimony of Robert James. James said he was “somewhat” afraid to testify, but he denied receiving any threats. Defendants thus argue that the jury must have connected James’s fear to defendant’s gang membership, based on Benson’s testimony. No such connection, however, was directly drawn between defendants’ membership in a gang to James’s fear in testifying. James also denied being threatened. Defendants also suggest that there were other explanations for Benson’s feigned lack of memory, namely, she was afraid of being involved in a murder investigation and she was afraid of going back to jail. These explanations, however, did not necessarily explain Benson’s responses at trial. She was not being prosecuted for any crime and was not at risk of going to jail. Therefore, we do not agree that these alternative explanations for her fear in testifying foreclosed the admission of the limited gang evidence.
We reject defendants’ contention that the trial court erred in admitting evidence of defendants’ gang membership.
II. The five-year term imposed under section 667, subdivision (a)(1), as to defendant McCombs.
The trial court, among other things, imposed a five-year term under section 667, subdivision (a)(1). Defendant makes two contentions regarding this sentence. First, he was denied his right to a jury trial on the allegation. Second, the trial court exceeded its jurisdiction by imposing the five-year term. We begin with McCombs’s second contention, because our resolution of that issue obviates the need to address the first.
Section 667, subdivision (a)(1), provides that “any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.”
The pertinent facts are: The information alleged one count of murder (§ 187, subd. (a)). The information also alleged the following: (1) McCombs suffered a prior conviction for a serious or violent felony—specifically, a violation of section 245, subdivision (a)(1)—within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) in Case No. GA036791. (2) In the same case, No. GA036791, McCombs was convicted of a serious felony, attempted murder, within the meaning of section 667, subdivision (a)(1), the five-year enhancement. (3) McCombs served a prior prison term for a violation of Vehicle Code section 10851, within the meaning of section 667.5, subdivision (b), the one-year enhancement. On the defense’s motion, trial of the priors was bifurcated.
Section 667.5, subdivision (b), provides: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”
While the jury was deliberating, the trial court addressed defendants about trial on the prior conviction allegations. As to defendant McCombs, the court noted that he had a “prior strike allegation of an attempted murder” and a prior prison commitment allegation. The court asked defendants if they would “agree to waive their right to a jury trial as to all of the prior allegations, both the strike allegations and as to the one-year prior allegations, . . .” (Italics added.) The court advised McCombs that under section 667.5, subdivision (b), “you have been alleged to have suffered the same type of prior prison commitment [under section 667.5, subdivision (b)]. . . . [I]n addition, you are charged with an additional strike under the Three-Strikes law.” After advising McCombs about his right to a jury trial, McCombs waived it.
The jury rendered its verdict on May 7, 2007 and was discharged without objection from McCombs. A sentencing hearing was thereafter held on May 31. At that time, the prosecutor and McCombs’s counsel informed the court that the prior attempted murder alleged as a five-year enhancement under section 667, subdivision (a)(1), in the information was actually reduced at the time of plea to a section 245, subdivision (a)(1), with a section 12022.7 allegation.
The trial court then again asked defendant McCombs to waive his right to a jury trial, specifically as to the section 667.5, subdivision (b), and Three Strikes allegations. McCombs waived his right. Specifically, he admitted, under section 667.5, subdivision (b), that he suffered a prior conviction for violating Vehicle Code section 10851, subdivision (a). He also admitted suffering a conviction of section 245, subdivision (a)(1), and admitted an allegation under section 12022.7, subdivision (a), in case No. GA036791.
Then, as the trial court was imposing sentence, the court noted that it had not taken the “667(a) waivers.” The court therefore asked defendant McCombs if he understood and waived his rights with respect to that allegation as well. McCombs refused. The court, however, said, “[T]he defendant did admit the prior strike conviction. The court does find that that is a serious felony and that added to this serious conviction it would add the five years. So under . . . section 667(a) I would add an additional five years.”
Based on these events, defendant contends that the trial court, by imposing the five-year enhancement, acted in excess of its jurisdiction. We agree.
A defendant has a restricted right to a jury trial of prior conviction allegations. (See generally, People v. Epps (2001) 25 Cal.4th 19.) A defendant has a statutory right to be tried on prior conviction allegations by the same jury that decided the issue of guilt. (§ 1025, subd. (b).) “[I]n the absence of a defendant’s forfeiture or waiver, section 1025, subdivision (b) requires that the same jury that decided the issue of a defendant’s guilt ‘shall’ also determine the truth of alleged prior convictions. Because a jury cannot determine the truth of the prior conviction allegations once it has been discharged [citation], it follows that the information may not be amended to add prior conviction allegations after the jury has been discharged.” (People v. Tindall (2000) 24 Cal.4th 767, 782 (Tindall), italics added; see also People v. Gutierrez (2001) 93 Cal.App.4th 15 [trial court acted in excess of jurisdiction by allowing prosecution to file a late amendment alleging new prior convictions].)
In Tindall, the defendant waived a jury trial on prior conviction allegations, and the jury was then discharged. (Tindall, supra, 24 Cal.4th at p. 770.) Before sentencing, the prosecutor added allegations of prior convictions that were entirely different, having occurred in a different case number and at a different time, from the ones included in the original information. Although the defendant in Tindall had waived his right to a jury trial on the priors originally included in the information, he had not thereby waived his right to a jury trial on the new and different priors added by the amendment. Tindall thus held that the court prejudicially erred by allowing the postdischarge amendment.
Under Tindall, McCombs argues that the prosecutor here, after the jury was discharged, amended the information to allege that the five-year enhancement under section 667, subdivision (a)(1), was based on section 245, subdivision (a)(1), and section 12022.7, subdivision (a), and not on attempted murder as alleged in the information. The People counter that the exception in Tindall applies, namely, McCombs waived and forfeited his statutory right to have the enhancement allegation tried by the same jury that decided the issue of guilt.
Neither the waiver nor the forfeiture arguments are persuasive. The trial court, in taking the jury trial waiver, referred broadly to a waiver “as to all of the prior allegations,” but the court also specifically referred to the “strike” allegations and to the “one-year prior allegations.” The court did not specifically reference the five-year prior allegation under section 667, subdivision (a)(1). Indeed, the court itself said it had not taken a jury trial waiver on that allegation and asked defendant to expressly waive his right as to the section 667, subdivision (a)(1) allegation, which request defendant refused. We therefore are reluctant to find a waiver when the trial court itself did not believe it had taken a waiver of McCombs’s jury trial right on the section 667, subdivision (a)(1), allegation.
Nor do we think McCombs could have forfeited his jury trial right on that allegation. In People v. Saunders (1993) 5 Cal.4th 580, the defendant did not waive his right to a jury trial on his prior convictions, although defense counsel had indicated to the trial court defendant would waive it. Apparently believing that the defendant would waive his right to have the same jury try his prior convictions, the trial court discharged the jury without first obtaining defendant’s waiver. The defendant, however, failed to object to the discharge. Saunders held that the defendant forfeited the statutory right to a determination of an alleged prior conviction by the same jury that determined the defendant’s guilt by failing to object in a timely fashion when the jury was discharged.
Here, at the time the jury was discharged, the information alleged an attempted murder (§§ 664, 187) as the basis for the five-year enhancement. Therefore, if McCombs forfeited anything by failing to object to the jury’s discharge, it was the right to have the same jury that decided his guilt also decide the truth of the enhancement with attempted murder as the basis. It is unclear how McCombs could have forfeited his right to have the same jury determine the truth of the enhancement with section 245, subdivision (a)(1), as its basis, when assault had not yet been alleged at the time the jury was discharged.
Nonetheless, the People argue that even if McCombs did not waive or forfeit his right to have the same jury try the five-year enhancement allegation, the trial court did not act in excess of its jurisdiction by imposing sentence on the enhancement because substituting assault with a deadly weapon for an attempted murder was not a “real ‘amendment.’ ” The People point out that the information alleged that the prior conviction occurred in case No. GA036791. In other words, the assault with a deadly weapon and attempted murder were both under that case number; hence, the information was not really “amended” when the prosecutor substituted the assault for the attempted murder as the basis for the five-year enhancement.
The mere fact that the People got the case number right simply does not render the amendment “not real.” Substituting a substantive offense for another is not akin to a clerical error in which, for example, the case number or date of the conviction was incorrect. (See, e.g., People v. McQuiston (1968) 264 Cal.App.2d 410, 417-418 [amendment to information to correct prior conviction allegation as to date and name of court “did not change the nature of the offense charged” and therefore did not require that defendant be re-arraigned; the charge remained the same].) Rather, the nature of the prior conviction was different. We therefore conclude that the trial court acted in excess of its jurisdiction, and we strike the five-year enhancement.
We therefore need not address defendant McCombs’s alternative argument that the trial court prejudicially erred by denying him his right to a jury trial on the five-year enhancement allegation.
IV Imposition of the upper term did not violate defendant Harris’s Sixth and Fourteenth Amendment rights.
The trial court imposed the upper term of 11 years for voluntary manslaughter on defendant Harris. He now contends his upper term sentence violates his Sixth and Fourteenth Amendment rights. (See generally, Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; United States v. Booker (2005)543 U.S. 220; and Cunningham v. California, supra,549 U.S. 270.) We disagree.
Cunningham held that California’s determinate sentencing law violates a defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent that law authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California, supra, 549 U.S. at p. 281.)
After Cunningham, our California Supreme Court, in People v. Black (2007) 41 Cal.4th 799, at page 816 (Black II), re-examined California’s determinate sentencing system and held that the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term: “[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 also took a broad view of the scope of the prior conviction exception. The court said: “As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres [v. United States (1998) 523 U.S. 224] exception to include 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. . . . [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ ” (Black II, supra, 41 Cal.4th at pp. 819-820.) The broad view Black II took of the prior conviction exception was continued in People v. Towne (2008) 44 Cal.4th 63. Towne held that the exception includes the numerousness and increasing seriousness of the crimes, whether the defendant served prior prison terms, whether the subject crime occurred while the defendant was on parole or probation, and (when it can be determined from the record of convictions) whether defendant’s performance on parole or probation was unsatisfactory. We are bound by Black II and by Towne, as defendant acknowledges. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, the trial court, citing as aggravating factors Harris’s “criminal history starting in 1992 and spanning all the way to 1998,” his “extensive criminal history starting as a juvenile, all the way into adult life,” his poor performance on probation, and that his convictions are serious in nature and increasing in their seriousness over a period of time as aggravating factors, imposed the upper term of 11 years on the voluntary manslaughter conviction. Harris’s criminal history includes a prior conviction for, among others, Health and Safety Code section 11351.5 in 2000. He also committed the current crime while on probation. Under Black II and Towne, defendant was therefore eligible for the upper term.
We have reviewed Harris’s probation report. We note that his criminal history did not start in 1992, as stated in the reporter’s transcript. It started in 1996.
DISPOSITION
The five-year sentence under section 667, subdivision (a)(1), as to defendant McCombs is stricken. The abstract of judgment shall be amended accordingly. The clerk of the superior court is directed to forward the amended abstract of judgment to the Department of Corrections. The judgment is otherwise affirmed as to defendant McCombs and defendant Harris.
We concur: CROSKEY, Acting P. J., KITCHING, J.