Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. LA053950, John S. Fisher, Judge.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle, Larry M. Daniels, and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Abelardo Arrieta Salais, appeals the judgment entered following his conviction, by jury trial, for transportation of methamphetamine and marijuana, and for possession of methamphetamine and marijuana for sale. (Health & Saf. Code, §§ 11379, 11360, 11378, 11359.) Salais was sentenced to state prison for a term of four years.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
1. Prosecution evidence.
On October 13, 2006, Officer Bryan Fox was in the West Valley, conducting undercover surveillance of a street corner known for drug trafficking. He saw two men, one Hispanic and one white, standing together on the sidewalk. The Hispanic man looked up and down the street, jumped on a bicycle and rode over to a blue Toyota Camry. He got off the bike and got into the back of the Camry. Less than a minute later, the bicyclist exited the Camry, looked down at his right hand and nodded in the direction of the white man. Fox could not see what was in the bicyclist’s hand. The bicyclist put whatever it was into his pocket and rode back to where the white man was standing. Meanwhile, the Camry made a U-turn and drove off.
Fox believed he had just witnessed a call-and-deliver drug transaction. The most popular way to buy drugs in this part of the West Valley was for the buyer to call the drug dealer and set up a specific location to meet and conduct the transaction. In a variation on this theme, the dealer would send out a runner to meet with the buyer and conduct the transaction. These call-and-deliver transactions typically took less than a minute to complete.
Fox followed the Camry to the parking lot of a nearby strip mall. The Camry parked nose-to-nose with a white van. Someone was sitting in the driver’s seat of the van. Defendant Salais got out of the driver’s side of the Camry, walked to the passenger side of the van and got in. Fox saw Salais and the van driver talking and looking down. Based on everything he had seen to this point, Fox believed he was witnessing another drug transaction. Fox and another officer approached the van and ordered the occupants out. The van driver had a $50 bill and a $10 bill in his hand. Fox believed the driver was about to purchase drugs. A search of the van revealed a hand-rolled marijuana cigarette on the driver’s side of the floorboard, and a clear plastic bag containing 14 grams of marijuana on the floorboard in between the driver’s seat and the passenger seat.
Fox radioed other officers to detain the white man and the bicyclist, but they could not be located.
Meanwhile, Detective Gerald Holtz and other officers had gone to check out the Camry. As Holtz approached the driver’s side, he saw codefendant Ibarra sitting in the passenger seat. Ibarra was looking toward the white van and also at a clear plastic bindle he had in his hand. Holtz tapped his badge against the window to catch Ibarra’s attention. Ibarra looked at him and then put the bindle down between the center console and the passenger seat. When Ibarra got out of the car, Holtz saw a plastic tackle box on the passenger side floorboard. Inside the box were four clear plastic bindles containing methamphetamine. The bindle Ibarra had been holding contained methamphetamine. The tackle box also contained 10 individually wrapped baggies of marijuana. There was a cell phone in the Camry’s center console.
The 10 bindles of marijuana recovered from the tackle box contained almost 85 grams of marijuana. The four bindles of methamphetamine recovered from the tackle box contained a total of 1.8 grams of methamphetamine. There were.32 grams of methamphetamine in the bindle Ibarra had been handling.
Neither Salais nor Ibarra appeared to be under the influence of either methamphetamine or marijuana. Both men were arrested. Salais was in possession of the following currency: three $20 bills, one $10 bill, two $5 bills, and one $2 bill. Ibarra had one $100 bill, one $50 bill, one $20 bill, one $5 bill and one $1 bill. The driver of the white van was ticketed for possession of less than an ounce of marijuana and released.
Without objection, both Fox and Holtz testified as experts in recognizing drug transactions. Fox said it was common for dealers to carry more than one type of drug so they could service a wider clientele. Fox opined the drugs found in the Camry were possessed for sale. He based this opinion on having seen: (1) the bicyclist ride over to the Camry, and then back to the white man; (2) Salais immediately thereafter drive the Camry to the strip mall; (3) Salais exit the Camry and get into the white van. In addition, the manner in which the drugs were packaged, the number of packages, the amount and denominations of the currency found on the defendants, and the lack of drug paraphernalia, all tended to show the drugs were possessed for sale.
Detective Holtz testified many drug dealers carry a $2 bill in the belief it is a lucky charm against police apprehension. In addition, $10 and $20 bills are often used in street drug transactions. Cell phones are used in call-and-deliver transactions. The way the white van and the Camry had been parked, directly facing each other, was common in call-and-deliver transactions because it allowed a lookout to keep an eye on the other vehicle. Holtz believed the marijuana and methamphetamine found in the Camry were possessed for sale based on the quantity of the drugs and the way they were individually packaged, the fact the drugs were stored in the tackle box, the presence of the cell phone, the lack of drug paraphernalia, and the fact neither Salais nor Ibarra appeared to be under the influence of drugs. The amount and packaging of the marijuana was sufficient by itself for Holtz to conclude it was possessed for sale. As for the methamphetamine, he came to the same conclusion after considering the totality of the circumstances.
The evidence showed, for instance, that the five bindles of methamphetamine were identically packaged.
Holtz testified he considered the lack of drug paraphernalia only in connection with the marijuana because he had seen users eat methamphetamine.
2. Defense evidence.
Ibarra testified he lived at Salais’s sister’s house and barely knew Salais. On the day of the arrest, Salais picked Ibarra up from work and they drove around. Ibarra did not ask Salais where they were going. There was a tackle box on the passenger-side floorboard, just beneath Ibarra’s feet. When they drove past Ibarra’s house, Salais said he needed to run an errand and he would take Ibarra back in a few minutes.
Salais stopped somewhere and a man Ibarra did not know got into the back seat. Ibarra did not pay attention to what Salais and the man were doing. Then Salais drove to the strip mall. He parked and told Ibarra to hand him the tackle box. Ibarra didn’t know what was in the box. When Salais opened the box, Ibarra saw some green and white bindles. He didn’t know what they contained and did not suspect they contained drugs. Salais took a bag out of the tackle box, got out and went over to the white van. Ibarra was curious, so he opened the tackle box and picked up one of the white bindles. While he was looking at it, Detective Holtz tapped on the window and startled him. Ibarra put the bindle away and was then ordered out of the Camry.
Ibarra denied he had been acting as Salais’s lookout or that Salais was teaching him the drug trade.
Salais did not testify.
CONTENTIONS
1. The trial court erred by allowing the police officers to testify Salais was selling drugs.
2. There was insufficient evidence to support Salais’s convictions for possessing drugs for sale.
3. The trial court erred by imposing an upper term sentence based on Salais’s prior criminal history.
DISCUSSION
1. The officers’ expert testimony was proper.
Salais contends the trial court erred by admitting the expert testimony of Officer Fox and Detective Holtz that the drugs found in the Camry were possessed for sale. This claim is meritless.
a. Legal principles.
“We apply an abuse of discretion standard in reviewing a trial court’s decision to admit the testimony of an expert.” (People v. Prince (2007) 40 Cal.4th 1179, 1222.)
It is well-established that “an expert may testify concerning criminal modus operandi and may offer the opinion that evidence seized by the authorities is of a sort typically used in committing the type of crime charged. An experienced police officer may testify as an expert, for example, that tools discovered in a defendant’s automobile are of the type commonly used in burglaries. [Citation.] A police inspector may explain that conduct such as that engaged in by the defendant constituted the ‘ “usual procedure” ’ followed in committing the crime of ‘till tapping.’ [Citations.]” (People v. Prince, supra, 40 Cal.4th at pp. 1223-1224.) “Such modus operandi evidence ‘ “helps the jury to understand complex criminal activities and alerts it to the possibility that combinations of seemingly innocuous events may indicate criminal behavior.” ’ [Citation.] Testimony concerning criminal modus operandi may be helpful to the jury even if the modus operandi is not particularly complex. [Citations.]” (Id. at p. 1224.)
Till tapping is a crime in which perpetrators distract the attention of a store check-out clerk so money can be filched from the clerk’s open cash drawer.
“In cases involving possession of [illegal drugs, such as] marijuana or heroin, experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.” (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862.) “Courts have overwhelmingly found police officers’ expert testimony admissible where it will aid the jury’s understanding of an area, such as drug dealing, not within the experience of the average juror.” (United States v. Thomas (6th Cir. 1996) 74 F.3d 676, 682, disapproved on another ground in Morales v. American Honda Motor Co., Inc. (6th Cir. 1998) 151 F.3d 500, 515.)
“Despite the circumstance that it is the jury’s duty to determine whether the prosecution has carried its burden of proof beyond a reasonable doubt, opinion testimony may encompass ‘ultimate issues’ within a case. Evidence Code section 805 provides that ‘[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.’ (See People v. Valdez (1997) 58 Cal.App.4th 494, 497... [a gang expert testified that the defendant was a member of a particular gang and that his activities were undertaken on behalf of the gang].)” (People v. Prince, supra, 40 Cal.4th at p. 1227.) However, “[a] witness may not express an opinion on a defendant’s guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] ‘Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.’ [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)
b. Discussion.
Salais argues the expert opinions of Officer Fox and Detective Holtz should have been excluded because they were not supported by reliable evidence, did not involve matters beyond the jury’s expertise, and improperly encompassed the ultimate issue in the case, i.e., Salais’s subjective intent in possessing the drugs found in his car. We disagree.
The Attorney General claims Salais waived this claim by failing to object to the expert testimony in the trial court. Salais argues he preserved the issue for appeal because he “objected to the form of the question when the prosecutor asked Detective Holtz if the items of drugs seized during the incident were possessed for sale.” But that objection was not for any of the reasons Salais now claims made the testimony improper. When the prosecutor asked Holtz, “Going back to the evidence and the police report that you reviewed as a part of your investigation in this case, do you have an opinion as to whether the items depicted in People’s 1, page 4, 5 and 6, were possessed for sale?”, Salais objected that “the form of the question... may be basing [sic] on stuff that is irrelevant, suppressed, and hearsay....” The trial court agreed. When the prosecutor reformulated the question so it did not refer to the police report, there was no defense objection and Holtz answered that in his expert opinion they were “possessed for the purpose of sales.” Moreover, Officer Fox had already testified, without objection, that based on all his observations he believed the drugs were possessed for sale.
In response to the questions eliciting this opinion from Fox, Salais either made no objection at all, or he objected on a ground other than the grounds he raises on appeal.
Hence, we agree the issue has been waived. (See Evid. Code, § 353; People v. Lindberg (2008) 45 Cal.4th 1, 48 [“As a preliminary matter, we agree with respondent that defendant forfeited this claim because, although defendant objected to the admission of the expert’s testimony as a whole, he failed to object specifically on the ground he now advances and thereby deprived the trial court an opportunity to make a fully informed ruling on the issue.”].) However, in order to forestall the inevitable ineffective assistance of counsel claim, we will address the substantive merits.
Evidence Code section 353 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
Although Salais claims the testimony by Holtz and Fox did not involve matters beyond the jury’s expertise (see Evid. Code, § 801), it is well-established that expert testimony explaining the mechanics of drug trafficking is proper. (See, e.g., People v. Harris (2000) 83 Cal.App.4th 371, 373 [officer’s testimony that Atascadero State Hospital patients smuggle in contraband and barter it for postage stamps provided sufficient evidence defendant possessed marijuana and methamphetamine for sale]; People v. Parra (1999) 70 Cal.App.4th 222, 225-227 [sufficient evidence defendants possessed cocaine with intent to sell based on officers’ testimony regarding quantity, packaging, concealment behind car dashboard, lack of drug paraphernalia, and defendants not being under the influence]; People v. Carter (1997) 55 Cal.App.4th 1376, 1377 [trial court properly allowed officer to “to render an expert opinion that defendant possessed rock cocaine for purposes of sale, based on the quantity of the drug possessed”].)
Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....”
The evidence here revealed a series of comings and goings which Salais himself characterizes as ambiguous everyday activities that “could have been appellant buying, selling, or consuming drugs, or could have been mere social visits.” These are exactly the kind of ambiguous activities warranting expert interpretation in order to alert the jury “ ‘ “to the possibility that combinations of seemingly innocuous events may indicate criminal behavior.” ’ ” (People v. Prince, supra, 40 Cal.4th at p. 1224.)
Salais complains the evidence about the currency denominations and the cell phone was an unreliable basis for expert opinion because it was inherently ambiguous. But prosecution experts typically opine possession of cell phones or currency in particular denominations is indicative of drug trafficking. (See People v. Russell (2000) 81 Cal.App.4th 96, 103 [among factors justifying investigatory search was presence of cell phone in vehicle); People v. Harvey (1991) 233 Cal.App.3d 1206, 1217 [testimony showed use of cell phones and beepers was consistent with drug trafficking]; People v. Douglas (1987) 193 Cal.App.3d 1691, 1694 [expert properly considered hypothetical marijuana seller who had 44 dollar bills in his possession].) Moreover, this evidence was just a small part of Fox and Holtz’s reasoning.
Similarly, just because neither officer saw Salais with either drugs or money in his hand did not undermine the reliability of their expert opinions. Those opinions were based on the totality of their observations, which included not just what they saw Salais do inside the white van, but on the totality of the evidence, which included the bicyclist’s conduct and the drugs found inside Salais’s car.
Relying primarily on People v. Killebrew (2002) 103 Cal.App.4th 644, Salais argues the expert testimony improperly addressed his subjective intent in possessing the drugs. We disagree. As Killebrew itself pointed out, the expert there had not been a percipient witness and his testimony “was the only evidence offered by the People to establish the elements of the crime.” (Id. at p. 658.) Here, there was a great deal of circumstantial evidence tending to show the elements of the offense. Moreover, Fox and Holtz were percipient witnesses who also testified as experts. Almost by necessity, their opinion testimony sometimes directly referenced Salais and Ibarra by name, but often their opinions were given in neutral terms.
For example, Fox opined the marijuana in the Camry had been possessed for sale based on “[e]verything from the fact that one guy meets, gets in, gets out, goes to another location, they are talking. Now we find 10 individually packaged [bindles of] marijuana....” (Italics added.) The lack of paraphernalia for smoking the marijuana was “[m]ore indicative of someone just straight selling and not using” because “users... a lot of times carry their pipes with them.” (Italics added.) “[I]f you had to give your opinion as to whether the sales would be made easier or more difficult, whether it was one or two persons, what would your opinion be? [¶] A. I believe two. Two is easier. [¶] Q. Why? [¶] A. The extra set of eyes, the lookouts.” Holtz testified the marijuana packaging indicated it was being possessed for sale because the “almost identically... same size packaging... is very common for street dealers.” “It’s for the convenience of the seller....”
Two other cases relied on by Salais are similarly inapposite. In People v. Brown (1981) 116 Cal.App.3d 820, 829, the non-percipient expert had already given the jury all the information it needed to decide the defendant had been acting like a drug runner, and thus there was no need for the expert to go further and opine the defendant was a drug runner. In People v. Hernandez (1977) 70 Cal.App.3d 271, the percipient expert’s opinion that he had witnessed a drug transaction was not only based on “highly equivocal” conduct, but no drugs were ever found. (Id. at p. 281.)
The trial court did not abuse its discretion by allowing the officers to testify the drugs in this case were possessed for sale.
2. There was sufficient evidence to support the possession for sale convictions.
Salais contends there was insufficient evidence to support his convictions for possessing methamphetamine and marijuana for sale. This claim is meritless.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole 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. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “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 [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Salais argues neither officer saw him “exchanging any controlled substance for money. It was therefore necessary for the jury to speculate that when appellant was observed inside the white van... he was indeed selling rather than buying or merely smoking marijuana.” Not so. What the officers saw Salais doing inside the van was only a small part of the evidence against him, which included the following: the conduct of the bicyclist; the way the Camry had immediately driven over to the strip mall and parked nose-to-nose with the white van; the currency found in Salais’s possession; the quantity and packaging of the drugs found in the Camry; and, the lack of drug paraphernalia in the Camry.
Detective Holtz testified the marijuana was possessed for sale based on “[t]he totality of the evidence that was explained to me by Officer Fox, my observations, the amount, the packaging, the way it was located in the tackle box, the cell phone, no additional paraphernalia such as smoking devices for marijuana found in the Camry.” By “packaging,” Holtz explained he was referring to the fact there were “ten individually wrapped [items], almost identically in the same size packaging, which is very common for street dealers.” “It’s for the convenience of the seller.... They have it preweighed. The buyers usually look at the size, and it would be a custom what size the packaging is, depending on how much they’re going to weigh.” Regarding the methamphetamine: “Once again, the five individual packaging [sic], identical; the information that was given to me by Officer Fox throughout this investigation.” “On the marijuana, the amount and packaging would be enough, but on the methamphetamine it would be the totality of everything.” Officer Fox, too, testified he had considered the totality of the circumstances in reaching the same opinion.
Defense counsel tried to meet this incriminating evidence head-on during closing argument, suggesting the dissimilarly-sized bag of marijuana found in the van showed Salais had been buying marijuana, not selling it, and that the tackle box belonged to Ibarra, not Salais. Obviously the jury was unpersuaded by these alternative interpretations of the inculpatory evidence.
There was sufficient evidence to sustain the convictions.
3. Trial court did not err by imposing an upper term.
The trial court imposed an upper term on count 1, saying, “The high term is chosen based on [Salais’s] prior criminal history.” Salais contends the trial court violated Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] by basing the upper term sentence on a fact not found by the jury. This claim is meritless.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], the Supreme Court held: “Other 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.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403], the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely....” (Id. at p. 1254.)
However, Cunningham v. California, supra, 549 U.S. 270, overruled Black I, holding the middle term under the DSL is “the relevant statutory maximum” (Cunningham, supra, at p. 293) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction, “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.” (Id. at p. 281.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reconsidered Black I in light of Cunningham and held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.) “[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.” (Id. at p. 816.)
Meanwhile, “[t]he California Legislature quickly responded to the Cunningham decision. Senate Bill No. 40 (2007-2008 Reg. Sess.) (Senate Bill 40) amended section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. [Citations.] Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: ‘When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....’ (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.)” (People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Salais was sentenced on August 23, 2007, and the trial court stated its reasons for imposing the upper term. Hence, the trial court properly sentenced him in accordance with the requirements of Senate Bill 40 amended section 1170, subdivision (b). The fact Salais committed the offense before the effective date of the amendment is of no consequence. (See People v. Sandoval (2007) 41 Cal.4th 825, 845-846; People v. Wilson, supra, 164 Cal.App.4th at pp. 990-992.)
Moreover, even if Cunningham had applied to defendant’s sentencing, there would be no error. Black II held “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at p. 816.) According to the probation report, Salais has been convicted three different times for possession of marijuana for sale: in 1995, 1997 and 1999. Although he was given probation for the 1995 conviction, it was revoked when he committed the second offense; he served a prison term for the 1997 conviction and another prison term for the 1999 conviction. The probation report cited two aggravating factors, one of which was that Salais’s “prior convictions... are numerous or of increasing seriousness.” The probation report cited no mitigating factors and recommended imposition of the upper term. At the sentencing hearing, when defense counsel asked for imposition of the middle term, the prosecutor noted the seriousness of Salais’s criminal record. The trial court then ruled: “Defendant is sentenced to state prison for the high term of four years. [¶] The high term is chosen based on his prior criminal history.”
Contrary to Salais’s argument the trial court erred by simply referring to his “prior criminal history,” there was nothing wrong with this. (See People v. Towne (2008) 44 Cal.4th 63, 76, fn. omitted [trial court had authority to find defendant’s prior convictions were numerous and it was presumably referring to this aggravating factor when it mentioned defendant’s “criminal history”].) Finally, there was no error just because the only evidence of Salais’s prior convictions consisted of hearsay statements in the probation report. (See People v. Black, supra, 41 Cal.4th at p. 820, fn. 9 [preponderance of the evidence standard, which trial court presumably applied to hearsay evidence of priors in probation report, satisfies due process].)
The trial court did not err by imposing an upper term on count 1.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.