Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, James R. Brandlin, Judge., Los Angeles County Super. Ct. No. SA058072.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Barnavis Stalllings
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Shawan Duggins.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Barnavis Stallings and Shawan Duggins appeal from convictions stemming from a robbery in Los Angeles. Stallings challenges the sufficiency of the evidence that he aided and abetted the robbery. Substantial evidence supports Stallings’s conviction for robbery. Both appellants argue the trial court erred in refusing to instruct on the lesser offenses of grand theft person, grand theft, petty theft, and receiving stolen property. In addition, Duggins argues the trial court erred in failing to instruct, sua sponte, on the definition of a deadly weapon. We find no instructional error. Finally, both appellants argue that the trial court violated their Sixth and Fourteenth Amendment rights to a jury determination beyond a reasonable doubt of aggravating factors upon which upper terms were imposed. We conclude that the upper terms were properly imposed based upon factors relating to the recidivism of each appellant. To the extent that the trial court relied upon factors not related to recidivism, the error was harmless.
FACTUAL AND PROCEDURAL SUMMARY
Justin Carter, a Brooklyn record executive, was in southern California in October 2004 for a concert by one of the bands who recorded for his label. He left the concert at about 12:30 a.m., with the intent to drive to a party. He made a wrong turn and got lost. The band was in a van ahead of Carter. Carter called the band van on his cell phone and it was decided that both vehicles would pull into a gas station for directions and gasoline. Carter pulled up to a gas pump. There was an SUV on the other side of the pump, which he described as a tan or gold Ford Expedition. Three men were outside the SUV.
Carter got out of his car. His green canvas Claiborne bag was over his shoulder. It held his laptop computer, an external hard drive, a petty cash book, and some compact discs. He unsuccessfully tried to pump some gas. One of the men next to the SUV, whom Carter identified as Stallings, approached him. Stallings was wearing a blue gas station attendant’s outfit. It had white cursive stitching on the left breast pocket.
Stallings said that if Carter paid him half of the gasoline money “up front,” then he would pump the gas. Carter said “no” and Stallings went back to the other side of the pump. Carter continued to try to pump gas. Stallings returned and again offered to pump the gas for him. When Carter again rejected this offer, Stallings told him to pay the cashier and he would be able to pump the gas. Carter said “‘Okay. Fine.’” Carter paid the cashier and returned to his car. Stallings, the other two men, and the SUV were gone.
While Carter was trying to pump the gas, he felt “a really sharp pain” in the back of his head that knocked him forward against the trunk of his rental car. He looked over his shoulder and saw Duggins holding a tire iron over his head. Carter identified exhibit 2, a 10-inch tire iron, as resembling the tire iron Duggins held. Duggins, who was right against Carter’s back, said: “I want you to show me where all the money is.” Carter slid his wallet part way out of his back pocket and Duggins grabbed it. Carter testified that he was afraid. Duggins demanded that Carter turn over the green canvas bag. Duggins took the bag and backed away from Carter. Carter’s plea for return of the computer was refused, and Duggins ran behind the gas station. He got into the right back seat of the same Expedition that had been parked on the other side of the gas pump when Carter came to the station. Carter could not see who else was in the vehicle at that point.
Carter reported the theft to the gas station attendant, and police were called. Eventually Carter was taken by police officers to another location where he identified Stallings and Duggins. Officers showed him his laptop and red petty cash book. Carter’s wallet, identification, credit cards, compact discs, notes, and petty cash were never recovered.
Duggins was convicted of second degree robbery and assault with a deadly weapon. Stallings was convicted of second degree robbery. The trial court found each appellant to be in violation of probation (case Nos. SA055919 and YA056905 as to Stallings, and case No. YA060094 as to Duggins). Stallings was sentenced to the upper term in the present case and to consecutive sentences of eight months in case No. SA055919 and one year and four months in case No. YA056905, for a total term of seven years.
The trial court found true prior strike conviction allegations as to Duggins (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and a prior prison term allegation under section 667.5, subdivision (b). He was sentenced to the upper term of five years for robbery, doubled pursuant to section 1170.12, subdivision (c)(1), plus five years under section 667, subdivision (a)(1), and one year pursuant to section 667.5, subdivision (b), for a total of 16 years. The sentence on the assault charge was stayed pursuant to section 654. Both Stallings and Duggins appeal. Duggins joins in the arguments made by Stallings to the extent they are applicable.
All statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
I
Stallings challenges the sufficiency of the evidence that he aided and abetted the robbery. “‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 848.)
“‘[A]n aider and abettor is a person who, “acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.”’ (People v. Prettyman (1996) 14 Cal.4th 248, 259 [58 Cal.Rptr.2d 827, 926 P.2d 1013], quoting People v. Beeman (1984) 35 Cal.3d 547, 561 [199 Cal.Rptr. 60, 674 P.2d 1318].)” (People v. Jurado (2006) 38 Cal.4th 72, 136.)
Neither presence at the scene of a crime nor knowledge of, but failure to prevent a crime, is sufficient to establish aiding and abetting liability. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) “However, ‘[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094 [126 Cal.Rptr. 898].)” (25 Cal.App.4th at p. 409 .) In Campbell, the defendant and the principal walked by the victims, who were in an isolated place. They approached the victims together. The principal then told the male victim that this was a robbery and put a gun to his head. The male victim fled, with the principal in pursuit, firing as he ran. Meanwhile, defendant attempted to rob the female victim and raped her.
On appeal, the defendant in Campbell argued there was insufficient evidence to support his conviction of aiding and abetting the attempted robbery of the male victim on an aiding and abetting theory. The appellatecourt found substantial evidence to support the conviction. It held that the concerted action in approaching the victims together “reasonably implies a common purpose . . . .” (People v. Campbell, supra, 25 Cal.App.4th at p. 409.) While the principal announced a robbery and pulled out the gun, the defendant remained in position in front of the female victim. “Since there is no evidence he was surprised by [the principal’s] conduct or afraid to interfere with it, the jury could reasonably conclude that [the defendant] assumed his position in front of [the victims] to intimidate and block them, divert suspicion, and watch out for others who might approach. Such conduct is a textbook example of aiding and abetting. [Citations.]” (Ibid.) The court in Campbell also found evidence of a common purpose to rob both victims and that defendant acted with a knowing and intentional effort to assist the principal. (Id. at p. 410.)
In In re Lynette G., supra, 54 Cal.App.3d 1087, the minor and two other girls stood five feet away while a cohort robbed the victim. The minor fled with the perpetrator and her companions and was detained in their company soon after the crime. This was sufficient evidence of aiding and abetting a robbery. In In re Juan G. (2003) 112 Cal.App.4th 1, the defendant and a cohort approached the victim together. The cohort demanded money at knifepoint, while defendant stood within touching distance. The defendant and his cohort fled together, and were found and arrested together. (Id. at p. 5.) The Juan G. court concluded that the case was analogous to Lynette G. and found sufficient evidence that the defendant aided and abetted a robbery. (In re Juan G., supra, 112 Cal.App.4th at p. 6.)
Here the evidence established that Stallings was with Duggins and another man at the gas station. Stallings made the first attempt to obtain money from Carter through the ruse of being a gas station attendant. That attempt was unsuccessful and the three left. After Duggins robbed Carter, he fled in the same SUV. Stallings, Duggins, and the other man were apprehended within 15 minutes at a location one mile from the scene of the robbery. They were in the same SUV. Loot from the robbery was in the SUV, as was a tire iron that met the description given by Carter. While Stallings was not present at the actual robbery, a common intent to take money from Carter may be inferred from this evidence. Stallings and Duggins were together at the gas station before the robbery, each acted to obtain money from Carter, and they were found together a short time afterward in the same vehicle which contained Carter’s property. There was substantial evidence to support Stallings’s conviction as an aider and abettor.
II
Stallings joined in a request by Duggins for instructions on lesser related offenses, including grand theft person, grand theft, petty theft, and receiving stolen property. The trial court denied the request, finding that this was either robbery or no crime. On appeal, both appellants argue their robbery convictions must be reversed because the trial court refused to instruct on grand theft person, grand theft, and petty theft.
“‘The trial court must instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.] On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given.’ (People v. Kraft (2000) 23 Cal.4th 978, 1063 [99 Cal.Rptr.2d 1, 5 P.3d 68].)” (People v. Roldan (2005) 35 Cal.4th 646, 717.)
A. Theft Offenses
Stallings argues that the evidence at trial raised a question as to whether taking by force or fear was established. His theory is that Carter’s testimony is subject to reasonable doubt because Carter wrote a story about the crime and gave it to the investigating detective. On cross-examination, Carter described his account as a story “which is for a wide audience which has artistic liberties taken in it.” He explained: “[W]hen I wrote that story, it was for—I wrote e-mail lists, I published it on my e-mail list, so when I used terms like ‘rushing’ it’s to convey some artistic message. [¶] The facts that I—if there is—there is a piece of information there, in fact, there is an event that I described, the particular happening, that’s the truth. The truth is there. The truth is what’s on this piece of paper. I just want to make it clear there I was using my language to convey my emotions as well as the happenings of the evening.” He was trying to “accentuate” the account, and thought it might be helpful to the detective. Carter sent the account to the officer after being told that it would be turned over to the defense. He also sent it to 3,500 people on his e-mail list. He described it as a “nonfiction” account.
Stallings points out that the story Carter sent to the detective does not mention the band. He also questions the credibility of Carter’s testimony that the band van left the gas station before the robbery without telling him that they planned to do so. Stallings argues that the members in the band “conveniently” were not witnesses to the robbery.
Carter was thoroughly cross-examined by both defense counsel, particularly with regard to the account of the robbery he sent to the detective. We find no evidentiary basis for instructions on the proposed lesser included offenses. Carter testified that he was hit by a tire iron and that he was fearful. This established that if the testimony of Carter was credited, the crime was robbery, not a lesser offense. Instructions on lesser included offenses were not warranted.
Stallings also argues that a reasonable jury could have rejected Carter’s claim that Duggins struck him from behind with the tire iron because Deputy Householder did not see any lacerations on Carter’s head at the scene, and Carter refused medical attention. Deputy Householder actually testified that while he did not see any lacerations, Carter may have had some. In addition, the deputy testified that Carter said he had some connection with the medical field, and said “he knows enough that if it feels worse he’ll go see a doctor or get help.” Stallings’s argument is too speculative and does not constitute an evidentiary basis for instruction on the lesser theft offenses.
Carter testified that he surrendered his property after Duggins hit him in the head with a tire iron. Stallings argues that because Carter exaggerated the facts in his written account, a reasonable jury could have concluded that Duggins never struck Carter with the tire iron. He also questions Carter’s testimony that he was afraid because he never mentioned fear until asked by the prosecutor. Stallings contends that Carter’s actions in pleading for the return of his laptop and asking to get out of the car at the field show up were inconsistent with fear. This argument goes to the weight to be given Carter’s testimony, and does not provide an evidentiary basis for the instructions on the lesser offenses. As respondent points out, Carter’s plea for the laptop establishes its importance to him and that he would not have surrendered it without force or fear.
Stallings also argues that the lesser theft offense instructions were appropriate because there was no evidence to establish the value of the items taken. He points to the lack of evidence to corroborate Carter’s testimony that the laptop was worth $2,000. The evidence that $363 in cash, an organizer, a wallet, CDs, an external hard drive, and a shoulder bag were taken established that the items taken were valued over $400, the amount required to constitute grand theft. (§ 487, subd. (a).) Any issue with respect to the value of the property does not constitute evidence that the crime was anything less than a robbery committed by force or fear.
B. Receiving Stolen Property
Stallings contends that the trial court erred in refusing instructions on the lesser included offense of receiving stolen property. To determine whether an offense is necessarily included in a greater offense, we apply two tests: “the ‘elements’ test and the ‘accusatory pleading’ test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
“To sustain a conviction for receiving stolen property, the prosecution must prove: (1) the property was stolen; (2) the defendant knew the property was stolen . . .; and, (3) the defendant had possession of the stolen property. (People v. Land (1994) 30 Cal.App.4th 220, 223 [35 Cal.Rptr.2d 544], citing People v. Kunkin (1973) 9 Cal.3d 245, 249 [107 Cal.Rptr. 184, 507 P.2d 1392].)” (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) The elements of robbery, as stated in CALJIC No. 9.40, are: “1. A person had possession of property of some value however slight; [¶] 2. The property was taken from that person or from [his] [her] immediate presence; [¶] 3. The property was taken against the will of that person; [¶] 4. The taking was accomplished either by force or fear; and [¶] 5. The property was taken with the specific intent permanently to deprive that person of the property.”
Respondent relies upon People v. Mora (1956) 139 Cal.App.2d 266, 273-274 to argue that receiving stolen property is not a lesser included offense of robbery. In Mora, the court relied on cases which held that receipt of stolen property is not included in the offenses of burglary and grand theft because the elements are different. The Mora court concluded that receipt of stolen property is not a lesser included offense of robbery. (Id. at p. 274.)
Stallings contends that a 1992 amendment to the definition of receiving stolen property (§ 496, subd. (a)) changed the law and makes that offense a lesser included offense of robbery. The 1992 amendment added the following language: “A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.” Stallings does not explain how this amendment made the receiving offense a statutorily lesser included offense of robbery. The statutory elements test for a lesser included offense is not satisfied. The elements of receiving stolen property are not included in robbery.
The accusatory pleading alleged second degree robbery in violation of section 211 by appellants, “who did unlawfully, and by means of force and fear take personal property from the person, possession, and immediate presence of [Carter].” The accusatory pleading alleged robbery, but did not allege the elements of receiving stolen property.
At most, receiving stolen property is a lesser related offense to robbery. A defendant has not had a right to instructions on lesser related offenses since the Supreme Court overruled People v. Geiger (1984) 35 Cal.3d 510 in People v. Birks (1998) 19 Cal.4th 108, 136.
Stallings argues that the jury could have concluded that he did not learn of the robbery until Duggins reached a place of temporary safety, and that he could be found guilty of receiving stolen property based on the evidence that he drove the SUV with Duggins and Carter’s property in it. Alternatively, Stallings speculates that the jury could have determined that the robbery was completed before he became aware of that offense, and therefore he was guilty only of receiving stolen property.
As we have discussed, the SUV was stopped near the scene of the robbery, 15 minutes after it occurred. While some of Carter’s property was missing from the SUV and was never recovered, the evidence supports the conclusion that the appellants had not yet reached a place of safety and were continuing to flee with the laptop. This is evidence of aiding and abetting a robbery rather than of receiving stolen property.
We conclude that the trial court properly refused to instruct the jury on lesser included offenses. The evidence established that the crime was robbery or no crime at all.
III
Duggins argues the trial court erred in failing to instruct, sua sponte, in terms of CALJIC No. 12.42, which defines a deadly weapon. He contends that the instruction was necessary because a tire iron is not a deadly weapon as a matter of law. Based on that reasoning, Duggins contends that the court was required to instruct the jury that the tire iron could be used as a deadly weapon and that Duggins intended to use it as such.
The jury was given CALJIC No. 9.02 which defined “deadly weapon” as “any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury.” The instruction provided: “‘Great bodily injury’ refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm.” Duggins argues the jury also should have received CALJIC No. 12.42: “A deadly [or dangerous] weapon is any weapon, instrument or object that is capable of being used to inflict death or great bodily injury[.] [, and it can be inferred from the evidence, including the attendant circumstances, the time, place, destination of the possessor, [the alteration, if any, of the object from its standard form,] and any other relevant facts, that the possessor intended on that [or those] occasion[s] to use it as a weapon should the circumstances require.] [¶] [It is not necessary that a weapon in fact be used or be visible.]”
Unlike a firearm or a knife, the tire iron used by Duggins is not a deadly weapon as a matter of law. (See People v. Henderson (1999) 76 Cal.App.4th 453, 467-468.) But in light of Carter’s testimony that Duggins hit him on the head with it, no further instruction was required for the jury to find that it was used as a deadly weapon in this case. We find no instructional error on the assault charge.
IV
Stallings and Duggins claim the trial court violated their Sixth and Fourteenth Amendment rights pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely); United States v. Booker (2005) 543 U.S. 220 (Booker); Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham) by imposing upper terms based on factors not found true by the jury beyond a reasonable doubt.
A. Supreme Court Authority
The United States Supreme Court in Cunningham, supra, 549 U.S. __ [127 S.Ct. 856] found California’s determinate sentencing scheme constitutionally defective in two respects. First, judges, rather than juries, make factual findings that have the effect of increasing the statutory maximum sentence for the crime by allowing the imposition of the upper term sentence. Second, the aggravating factors are found by a preponderance of the evidence rather than by proof beyond a reasonable doubt. (Id. at p. ____ [127 S.Ct. at p. 868].) The Supreme Court held that these aspects of the California statutes violate the bright-line rule of Apprendi: “Except for 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. 868, quoting Apprendi, supra, 530 U.S. 466, 490.)
B. Forfeiture
Respondent argues that appellants forfeited the sentencing argument because they failed to object under the Apprendi/Blakely line of cases at sentencing. As they point out, they were sentenced after the California Supreme Court upheld the determinate sentencing scheme against a Blakely challenge in People v. Black (2005) 35 Cal.4th 1238. Since this was controlling authority in California at the time, any objection at sentencing would have been futile. (People v. Boyette (2002) 29 Cal.4th 381, 432.) We conclude that the issue was not forfeited.
C. Recidivism Related Factors
Respondent argues that there was no error because the recidivism of each appellant constitutes a proper basis for imposition of the upper term without a jury determination, citing Almendarez-Torres v. United States (1998) 523 U.S. 224 and Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856, 860, 864]. In addition, respondent argues that a single aggravating circumstance is sufficient to render a defendant eligible for the upper term, citing People v. Osband (1996) 13 Cal.4th 622, 728-729.)
The Supreme Court granted review July 14, 2004 in People v. Towne, S125677. After Cunningham was decided, the Supreme Court requested additional briefing on the following issues: “(1) Do Cunningham v. California, supra, and Almendarez-Torres v. United States[,supra,] 523 U.S. 224, 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory ([Cal.] Rules of Court, rule 4.421[(b)(2)-(b)(5)])? [¶] (2) Is there any violation of the defendant’s Sixth Amendment rights under Cunningham v. California, supra, if the defendant is eligible for the upper term based upon a single aggravating factor that has been established by means that satisfy the governing Sixth Amendment authorities—by, for example, a jury finding, the defendant’s criminal history, or the defendant’s admission—even if the trial judge relies on other aggravating factors (not established by such means) in exercising his or her discretion to select among the three sentences for which the defendant is eligible?” (S.Ct. dock. entry of 2/7/07.)
In People v. McGee (2006) 38 Cal.4th 682, the Supreme Court decided that a defendant does not have a federal constitutional right to have the jury rather than the court examine the record of a prior criminal proceeding to determine whether an earlier conviction subjects the defendant to an increased sentence. (Id. at p. 686.) The issue in McGee was whether the defendant’s Nevada robbery convictions qualified as serious felony convictions for purposes of California’s “Three Strikes” law. Because of differences between California and Nevada law as to the elements of robbery, the record of the Nevada proceedings had to be examined in order to determine whether they were qualifying convictions.
The McGee court cited the following discussion in Apprendi distinguishing recidivism from other factors used to enhance punishment: “(1) recidivism traditionally has been used by sentencing courts to increase the length of an offender’s sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial protections. (Apprendi, supra, 530 U.S. 466, 487-488, citing Jones v. United States (1999) 526 U.S. 227 [143 L.Ed.2d 311, 119 S.Ct. 1215], and Almendarez-Torres, supra, 523 U.S. 224; see also Monge v. California (1998) 524 U.S. 721, 728 [141 L.Ed.2d 615, 118 S.Ct. 2246] [the question whether the defendant’s prior conviction for assault with a deadly weapon involved personal use was a sentencing determination that fell within the Almendarez-Torres exception for recidivist behavior and therefore was not subject to double jeopardy protections]; People v. Seel (2004) 34 Cal.4th 535, 548 [21 Cal.Rptr.3d 179, 100 P.3d 870] [‘The high court has made clear that recidivism is different for constitutional purposes.’].)” (People v. McGee, supra, 38 Cal.4th at pp. 698-699.)
The McGee court distinguished “between sentence enhancements that require factfinding related to the circumstance of the current offense, such as whether a defendant acted with the intent necessary to establish a ‘hate crime’—a task identified by Apprendi as one for the jury—and the examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction—a task to which Apprendi did not speak and ‘the type of inquiry that judges traditionally perform as part of the sentencing function.’” (People v. McGee, supra, 38 Cal.4th at p. 709, quoting People v. Kelii (1999) 21 Cal.4th 452, 456.)
People v. Thomas (2001) 91 Cal.App.4th 212, is instructive. Thomas did not personally waive jury trial on two prior prison term allegations. The trial court found these allegations true and imposed an enhanced sentence accordingly. Thomas argued he was denied a jury trial on the prior prison term allegations in violation of Apprendi because the prior prison term was beyond the language in Apprendi, which held that other than the fact of a prior conviction, the jury must determine the basis for an increase in sentence beyond the statutory maximum. The Thomas court rejected this argument, citing cases from other jurisdictions interpreting Apprendi as applying to matters relating to recidivism beyond the precise fact of a prior conviction. (Id. at p. 221.) It concluded that Apprendi had not overruled Almendarez-Torres, which is controlling, and reasoned that the Apprendi language refers “broadly to recidivism enhancements which include section 667.5 prior prison term allegations.” (Id. at p. 223.) There were documents in Thomas that demonstrated without dispute that he had served two separate prison terms. (Id. at p. 223.)
Stallings and Duggins argue that the prior conviction exception identified by the Apprendi line of cases should be narrowly construed, limited to facts actually adjudicated, “i.e. facts found true by a jury or admitted by the defendant.” They cite Shepard v. United States (2005) 544 U.S. 13, in support of this argument. In People v. McGee, supra, 38 Cal.4th 682, the defendant, like appellants here, argued for a narrow recidivist exception based on Shepard. “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, supra, 544 U.S. 13 at p. 16 [125 S.Ct. at p. 1257].) 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, supra, 526 U.S. 227 [143 L.3d.2d 311, 119 S.Ct. 1215]] and Apprendi, to say that Almendarez-Torres 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 [125 S.Ct. at pp. 1262-1263], italics added; see also id. at p.16 [125 S.Ct. at p. 1257].)” (People v. McGee, supra, 38 Cal.4th at p. 707, fn. omitted.)
In McGee,the court concluded that Shepard did not purport to decide whether a state is constitutionally precluded from permitting a court to conduct an examination of a prior criminal proceeding to determine whether a conviction constitutes a qualifying prior conviction for purposes of enhancement under a state sentencing statute. (People v. McGee, supra, 38 Cal.4th at p. 708.) We are bound by McGee. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In addition, the aggravating factors as to both appellants do not require the type of inquiry at issue in Shepard and McGee. As we discuss below, each appellant had numerous prior convictions of increasing seriousness with a demonstrated failure to succeed on parole or probation. The facts establishing these histories may be determined from their criminal records without additional factfinding which would require a jury determination beyond a reasonable doubt.
D. Stallings
The trial court imposed the upper term on Stallings based on six factors, of which five relate to his recidivism. The factors in aggravation found by the trial court were that the manner in which the crime was carried out indicates planning, sophistication or professionalism; Stallings’s violent conduct indicates a serious danger to society; Stallings’s prior adult convictions and sustained juvenile petitions are numerous and of increasing seriousness; Stallings was on probation or parole when this crime was committed; and his prior performance on parole or probation was unsatisfactory. As to Stallings’s prior prison term, the trial court said: “The fact that the defendant has served a prior prison term. Although, this was alleged under 667.5(b), the district attorney, to his credit, elected to strike those rather than require a separate jury trial on that particular issue, which would have added an additional, theoretically, two years to his commitment.”
The trial court gave little weight to the aggravating factor based on the fact that the crime involved great violence, great bodily harm, or the threat of great bodily harm disclosing a high degree of cruelty, because it was Duggins rather than Stallings who hit Carter with the tire iron. With that exception, the trial court adopted the factors in aggravation as listed in the probation report and imposed the upper base term for robbery.
Stallings had a significant number of prior convictions, starting in 1989. He had convictions for misdemeanor violations of sections 245 and 417 (exhibiting firearm) in 1989; felony convictions for Vehicle Code section 10851 (vehicle theft) and section 245 in 1991; a misdemeanor section 243, subdivision (e) (battery against partner) conviction in 1991; a section 666 (petty theft with prior) conviction leading to a state prison commitment in 1993; misdemeanor Vehicle Code section 14601 (driving with suspended license) violations in 2001 and 2002; a conviction for possession of controlled substance (Health & Saf. Code, § 11350, subd. (a)) in 2002; a conviction for possession of cocaine base for sale (Health & Saf. Code, § 11351.5) in 2003; and a conviction for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) in 2005. Stallings had violated parole in 1995 and had violated probation in three different cases between 2002 and 2003. In the last of these cases, his probation was revoked three times.
Stallings’s adult record established his extensive criminal history involving crimes of violence, a number of offenses of increasing seriousness, his failure to perform satisfactorily on probation, and his prior prison term. These factors all relate to his recidivism. The trial court also relied on Stallings’s danger to society. In light of Stallings’s criminal history, we conclude that this factor did not require additional factfinding by the trial court. Under Apprendi, McGee, and Thomas, factors relating to recidivism do not require a jury determination.
The trial court also relied upon one factor related to the present crime: that the manner in which the present offense was committed indicates planning, sophistication, or professionalism. Any error in relying on this factor is harmless in this case. We are satisfied beyond a reasonable doubt that the court would have sentenced defendant to the upper term based solely on its findings concerning Stallings’s criminal record. (See Washington v. Recuenco (2006) __ U.S. __ [126 S.Ct. 2546].)
E. Duggins
Respondent argues that the trial court imposed the upper term based on factors related to Duggins’ recidivism which do not require a jury finding. We agree, for the reasons we have discussed. The trial court found true an allegation that Duggins suffered a prior conviction for robbery in case No. YA060094. The trial court also found beyond a reasonable doubt that this was a serious or violent felony conviction under section 1170.12, subdivisions (a)-(d) and section 667, subdivisions (b)-(i). The trial court also found true the allegation that Duggins failed to remain free from prison for a period of five years as to the conviction in case No. KA052134 (§ 667.5, subd. (b)).
The trial court concluded that Duggins was not eligible for probation, noting that he was on probation only a few weeks before committing the instant offense and had an extensive criminal history. The court selected the high term based on the following factors in aggravation: (1) The crime involved great violence and the threat of great bodily harm; (2) the manner in which the crime was carried out indicated planning, sophistication, and professionalism; (3) Duggins is engaged in violent conduct which indicates a serious danger to society; (4) Duggins’s prior convictions as an adult and sustained juvenile petitions are numerous and of increasing seriousness; (5) Duggins was on probation or parole when the crime was committed; and (6) Duggins’s prior performance on probation or parole was unsatisfactory. The trial court said that it was not using the prior prison term as a factor in aggravation because it is a separate enhancement. The trial court concluded that Carter would have surrendered his computer without being hit with a tire iron, which the court found to be an unnecessary and cruel act.
Duggins had a substantial juvenile history beginning in 1990. As an adult his history was extensive: in 1996, he was convicted of misdemeanor disturbing the peace (§ 415) and possession of a controlled substance; in 1998, he was convicted of misdemeanor carrying a loaded firearm in a public place (§ 12301, subd. (a)(1)); in 1999, he was convicted of misdemeanor violation of sections 591 and 273.5; in 2000, he was convicted of a misdemeanor violation of section 148, subdivision (a); in 2001, he was sentenced to probation for drug offenses but probation was revoked and he was sentenced to prison; and in 2004, he was convicted of robbery.
We conclude that Duggins was not entitled to a jury trial on the aggravating factors relating to his recidivism under the authority we discussed above. We are also satisfied that his danger to society can be determined based on the present convictions and his prior criminal record without the requirement of further jury findings.
Respondent also argues that the trial court’s finding that the crime involved great violence, great bodily harm, the threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness was based upon the fact that Duggins struck Carter with the tire iron, a fact inherently included in the jury verdict finding Duggins guilty of assault with a deadly weapon. (People v. Calhoun (2007) 40 Cal.4th 398.) In Calhoun, each defendant was convicted of two counts of vehicular manslaughter with gross negligence and reckless driving causing bodily injury. Calhoun and his codefendant, Waller, were drag racing when Waller struck another car killing two of the occupants, profoundly disabling a third occupant, and inflicting great bodily injury on his own passenger. Waller was sentenced to the upper term on the two vehicular manslaughter counts based on the aggravating factor that there were multiple victims.
The Supreme Court rejected Waller’s argument that reliance on the multiple victim factor was improper because it does not apply when the victims are named in a separate count. It concluded: “This case does not implicate Cunningham[,supra, 549 U.S. ___ [127 S.Ct. 856]] because in convicting Waller of two counts of gross vehicular manslaughter, and two counts of reckless driving causing bodily injury, the jury necessarily found there were multiple victims.” (People v. Calhoun, supra, 40 Cal.4th at p. 406.)
We agree with respondent that the jury’s conviction of Duggins for assault with a deadly weapon establishes the aggravating factor that this crime involved great violence and the threat of great bodily harm. Cunningham is not implicated by the use of this factor.
One aggravating factor relied upon by the trial court would require a jury determination, that the manner of the crime indicated planning, sophistication and professionalism. Any error in relying on this factor is harmless in this case. We are satisfied beyond a reasonable doubt that the court would have sentenced Duggins to the upper term based solely on its findings concerning his criminal record. (Washington v. Recuenco, supra, __ U.S. __ [126 S.Ct. 2546].)
DISPOSITION
The judgments of conviction are affirmed.
We concur: WILLHITE, J., MANELLA, J.