Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. James L. Quaschnick, Judge. Super. Ct. No. F05909077-0
David R. Mugridge for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, J.
STATEMENT OF THE CASE
On February 21, 2006, an information was filed in the Superior Court of Fresno County charging appellant Juan Orozco Tovar with count I, attempted murder (Pen. Code, §§ 664/187); count II, assault with a firearm (§ 245, subd. (a)(2)); count III, ex-felon in possession of ammunition (§ 12316, subd. (b)(1)); count IV, possession of a deadly weapon (§ 12020, subd. (a)); count V, ex-felon in possession of a firearm (§ 12021, subd. (a)(1)); and count VI, possession of marijuana for sale (Health & Saf. Code, § 11359). As to count I, it was alleged appellant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); inflicted great bodily injury or death as a result of discharging a firearm from a motor vehicle (§ 12022.55); and personally and intentionally discharged a firearm which proximately caused great bodily injury or death (§ 12022.53, subd. (d)). Appellant pleaded not guilty and denied the enhancements.
All further statutory citations are to the Penal Code unless otherwise indicated.
On May 1, 2006, the court granted the prosecution’s motion to dismiss count VI, and appellant’s jury trial began. On May 3, 2006, the court granted the prosecution’s motion to dismiss counts III and V. Appellant was found guilty of count I, attempted murder, count II, assault with a firearm, and count IV, possession of a deadly weapon, and the jury found the enhancements true.
On June 2, 2006, the court sentenced appellant as follows: count I, the upper term of nine years, with a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement, with the other enhancements stricken; count II, the upper term of four years, with the term and accompanying enhancements stayed pursuant to section 654; and count IV, the concurrent upper term of three years.
On July 28, 2006, appellant filed a timely notice of appeal.
FACTS
At 1:48 a.m. on December 2, 2005, Fresno County Sheriff’s Deputy Jeff Stricker responded to a dispatch that a gunshot victim had arrived at Fresno Community Hospital. Deputy Stricker made contact with Juan Larios in the emergency room. Larios was also known as “Juan Cerrillo” and “Tacho.” Larios’s wife was with him at the hospital. Larios was lying in a hospital bed, and had suffered gunshot wounds to his left arm and leg. It was stipulated that Larios’s gunshot wounds constituted great bodily injury.
Deputy Stricker testified Larios was initially “a little standoffish and didn’t want to give a lot of information. I began talking to his wife. And as I was talking to her, he began volunteering information.” Stricker testified Larios was alert, coherent, his eyes were open, and he could understand his questions as they talked about the incident. Stricker testified Larios did not appear to be under the influence, his eyes were not red or watery, his speech was not slurred, and he did not have the odor of alcohol on his person. Stricker did not ask Larios or the physicians whether Larios was under the influence or what drugs had been administered to him.
Deputy Stricker testified Larios said he was shot by “his long-time friend [appellant] Juan Tovar, ” at Larios’s residence on Simpson Avenue. Larios said it happened around 1:00 a.m., just about an hour before he spoke to Stricker. Larios said they were arguing outside the house, and Larios was leaning against the passenger side of appellant’s truck. Larios said appellant “picked up a gun, pointed it at him, and pulled the trigger.” Larios said he was hit twice.
Deputy Stricker told Larios they were going to try and find appellant and pick him up. Larios said they were long-time friends, and appellant had been the best man in his wedding. Larios also said, “‘I don’t want to get my friend in trouble, ’” and warned that appellant “‘is dangerous. When you pick him up, be careful. If he did this to me, who knows what he would do to someone he doesn’t know’?”
While Larios was being treated at the hospital, a bullet fell out of his clothing. The bullet was consistent with a .380-caliber hollow point bullet. There was some human tissue inside within the hollow point, consistent with the bullet going in and out of a person’s body.
Around 2:00 a.m., Deputy Daniel Buie was dispatched to Larios’s residence on East Simpson to determine if there was any evidence of a shooting. Two shell casings were found in Larios’s front yard: one was in the street near the curb, and the other was on the front lawn. The casings were consistent with .380-caliber semi-automatic ammunition, and stamped “R and P” for “Remington and Peters 380 auto-expended shell casings.”
Deputy Buie found a small pool of blood on the ground next to a car, blood drops on the front porch outside the front door, and a small amount of blood splattered on an interior wall next to the front door. There were blood drops on the dining room floor and in the bedroom hallway. A wedding photograph, which depicted appellant, Larios, and their families, was also found and taken for purposes of identification.
Later on December 2, 2005, several deputies responded to appellant’s house and placed him under arrest, and they obtained a search warrant for the residence. Deputy Mark Chapman, who was in charge of the investigation, advised appellant about the charges. Appellant denied being involved and said they should look into Larios’s background and some financial matters.
Deputy Chapman determined appellant was an ex-felon and prohibited from carrying certain types of weapons. The deputies recovered the following items from a bathroom which was only accessible through the bedroom used by appellant and his wife: a magazine for a nine-millimeter semi-automatic handgun; a live .380-caliber full jacketed hollow point bullet, stamped “RP, ” meaning “Remington Peters”; an empty gun case; a fully jacketed nine-millimeter Lugar live bullet; and two nine-millimeter round nose Lugar bullets, all of which were recovered from bathroom cabinet drawers. Deputy Chapman believed the .380-caliber bullet recovered from appellant’s house was consistent with the shell casings found outside Larios’s house, but forensic tests were not performed on the items. Chapman explained that in a semi-automatic handgun, the bullets are stored in the magazine; when the gun is fired, an expended casing is removed and thrown through the action of the gun, and the new round is fed from the magazine into the firearm.
There was a large cargo trailer in appellant’s backyard; half of the trailer was used for storage while the other half was arranged into a room and furnished with a television, stereo, desk, and a telephone. Appellant’s wife said he had access to the trailer. A set of brass knuckles was recovered from the furnished side of the trailer, and an empty gun holster, with a belt clip, was found in the storage side of the trailer. Deputy Chapman testified appellant was an ex-felon and prohibited from owning firearms, ammunition, and the brass knuckles.
Deputy Chapman interviewed appellant’s wife, who said that she had arrived home around 8:15 p.m. the previous evening, and appellant left the house between 8:30 p.m. and 8:45 p.m. She went to bed a short time later, and woke up between 1:00 a.m. and 1:30 a.m. because the baby needed a bottle. When she woke up, she realized appellant was in bed with her, and he also got up at that time. She said that she did not see appellant between 8:45 p.m. and when she woke up. She also said appellant used to have a cell phone but it was disconnected.
There were no firearms found at appellant’s house and the weapon used to shoot Larios was never found.
Larios’s Statement to Deputy Chapman
After completing the search of appellant’s house, Deputy Chapman returned to his office and received a message from Larios’s brother. Chapman returned the call and arranged for the brother to bring Larios to the sheriff’s department for an interview.
Deputy Chapman testified Larios’s brother brought Mr. and Mrs. Larios to the sheriff’s department on December 2, 2005. Mrs. Larios and the brother waited in the lobby while Deputy Chapman interviewed Larios in room 156. Larios had been released from the hospital earlier that day, but said he was not taking any pain medication. On cross-examination, Chapman testified he did not know that Larios was “a daily methamphetamine user by his own admission.” Chapman testified Larios did not exhibit any symptoms consistent with methamphetamine use. Larios was quiet and soft spoken. He did not appear to be intoxicated, under the influence of drugs, or unable to understand his questions. The interview lasted an hour and a half.
Deputy Chapman testified he asked Larios about the incident, and Larios said appellant shot him earlier that morning. Chapman produced a prior booking photograph of appellant, and Larios confirmed appellant was the shooter. Larios also confirmed appellant’s identity through the wedding photograph found at Larios’s house.
Chapman testified that he asked Larios why he appeared a little uncooperative at the hospital. Larios said he was in shock at the hospital because his best friend unexpectedly shot him. Larios said appellant had been his friend since childhood, and they were lifelong friends.
Larios said the incident which led to the shooting began eight weeks earlier. Larios and his wife rented a room in their house to a woman known as “Fire, ” who had “a way of paying people’s bills.” Chapman testified that Larios “explained it like this. Essentially somebody who had an outstanding debt could pay Fire half of what the debt was. She would in turn in some way pay the entire debt.” Larios said he did not know how she did it.
Larios said appellant had some type of debt for an unknown amount of money, and Larios introduced appellant to Fire to resolve the debt problem. Fire never paid off the debt, however, and appellant was “increasingly getting more adamant about getting this debt paid.” Appellant said Larios had to repay the debt since Larios introduced him to Fire.
About a week and a half before the shooting, Fire was no longer living in Larios’s room but her things were still in there. Appellant told Larios that he would forgive the debt if Larios allowed appellant’s girlfriend, Crissy, to move into the room. Crissy moved in about five days before the shooting. Larios said appellant would pick up Crissy, take her to work, and they would return together and stay in the room. On one occasion, a few days before the shooting, appellant and Crissy were having sex in the room and were very loud. Larios knocked on the door and told them to turn up the radio or television because they were too loud. Larios said he became angry because he realized appellant was just using his house as a motel room.
Larios said that on Thursday, December 1, 2005, he agreed that another women, Monique, could stay in that room. Monique was pregnant by Larios’s brother and needed a place to stay. Larios told Crissy that Monique needed to stay in the room, but that Crissy could still stay in the house. On the same day, however, Fire returned and started moving more things into the same room.
Larios stated that between 8:00 p.m. and 9:00 p.m., appellant and Crissy arrived at Larios’s house in appellant’s white truck. Appellant said he wanted to use the room to have sex with Crissy. Larios told appellant he could not use the room because Fire was back. Larios asked appellant to leave so Larios could ask Fire if she would allow them to use the room. Appellant and Crissy left. Larios asked Fire if appellant and Crissy could use the room, and Fire said no.
Larios said appellant and Crissy returned about an hour later, and Larios told them that Fire refused access to the room. Larios said that appellant wanted to take Fire from the residence and have her repay the debt. Larios said he would not let that happen. According to Larios, appellant said, “‘You know what, I can’t believe you put a bitch between us—between our friendship.’” Appellant said this was a serious matter, and appellant was going to return the following day and collect the debt from either Larios or Fire. Appellant and Crissy left in appellant’s truck.
Larios said that about 10 minutes later, he was in the house and someone knocked on the door. It was Monique’s mother, who said there were people in the front yard who wanted to talk to “‘Tacho, ’” referring to Larios. Larios went into the front yard and realized appellant and Crissy had returned in appellant’s truck. Appellant was in the driver’s seat and talking on a cell phone, and Crissy was in the front passenger seat. The passenger window was rolled down and Larios walked up to the passenger door.
Larios testified that appellant finished his phone conversation, said something, and simultaneously raised his right arm, extended it across the truck’s cab toward the passenger window, and pointed a handgun at Larios’s head. Larios said the gun was about two feet from his head. Larios started to duck and appellant fired the gun. Larios moved toward the front of the truck, but he was shot in the arm and upper leg. Appellant kept firing and then drove away in the truck. Larios said his family drove him to the hospital.
Trial Evidence
At trial, Larios testified as a prosecution witness but denied making any statements which implicated appellant. Larios testified appellant was like a brother to him, they grew up together in Malaga, and they had been friends for 30 years. Larios admitted he was shot in his arm and leg, but denied making any type of statement to Deputy Stricker at the hospital or Deputy Chapman at the sheriff’s department. Larios testified he did not speak to any officer at the hospital, he was never at the sheriff’s department, and he never accused appellant of shooting him.
Larios testified that on the evening before the shooting, he used “quite a bit” of crystal methamphetamine and drank “quite a bit” of alcohol. By the next morning, he could only remember “[s]ome” of what happened. He was in shock and a lot of pain from the gunshot wounds. He was also on a lot of medication at the hospital, when the officer supposedly questioned him. Larios admitted he previously sold and used drugs, and testified there were people out there who wanted to see him dead.
Larios conceded he spoke to Deputy Chapman, but insisted the interview occurred at Larios’s house and Larios told him “[b]ascially nothing.” Larios testified he did not know anyone named Fire or Crissy, and no one stayed at his house aside from his wife and family. Larios further testified he told a defense investigator that the things written in the police reports were not true.
Appellant never called the defense investigator who purportedly interviewed Larios.
Larios admitted he saw appellant at his house on the afternoon of December 1, 2005, but appellant left around 4:00 p.m. and Larios did not see him again that night. Larios admitted he had previously broken the law, but he would not lie to help appellant and no one threatened him to change his story. Larios testified he was good friends with appellant and his wife, and nothing would change that.
Appellant did not testify. Appellant’s wife testified that she remembered the night of the incident. She went to bed between 10:00 p.m. and 10:30 p.m. She woke up around 1:10 a.m., when their infant daughter needed a bottle, and appellant was home. She conceded appellant left sometime between 7:00 p.m. or 8:00 p.m. and went to a friend’s house, but he returned before she went to bed. She denied giving a contradictory statement to law enforcement officers. Appellant’s wife testified that appellant’s truck was not operating at that time and his cell phone had been disconnected.
Appellant was found guilty of count I, attempted murder, count II, assault with a firearm, and count IV, possession of a deadly weapon, and the jury found the enhancements true. On appeal, he contends defense counsel was prejudicially ineffective because he failed to move for bifurcation or severance of the charges based on his status as an ex-felon, failed to object to various questions raised by the prosecutor, and counsel’s conduct was prejudicial. Appellant also contends there is insufficient evidence to support his convictions, and counsel should have introduced evidence of third-party culpability—that Crissy could have been the person who fired the shots from the truck.
DISCUSSION
I.
INEFFECTIVE ASSISTANCE
Appellant raises several allegations of ineffective assistance, and asserts counsel should have moved to bifurcate or sever counts III and V, the charges based on his status as an ex-felon, and counsel’s failure to bifurcate these counts was prejudicial because it permitted the prosecution to introduce evidence that he was an ex-felon. Appellant also contends counsel was prejudicially ineffective because he failed to object to several questions asked by the prosecutor as irrelevant or leading.
A. Background
Appellant was initially charged with count I, attempted murder, and count II, assault with a firearm, based on shooting Larios. He was also charged with four counts based on the evidence seized from his house: count III, ex-felon in possession of ammunition, count IV, possession of a deadly weapon, brass knuckles; count V, ex-felon in possession of a firearm, a handgun (used to shoot Larios), and count VI, possession of marijuana for sale. Count VI was based on Deputy Chapman’s testimony at the preliminary hearing, that the furnished side of the large cargo trailer in appellant’s backyard appeared to be used for the packaging of marijuana. There was loose marijuana on top of the desk, packaging materials, packaged marijuana, a copy of the California Penal Code, a police scanner to monitor the sheriff’s department, and a pair of brass knuckles. The total amount of marijuana was three ounces.
Appellant was represented by retained counsel, Gerald Schwab. On the first day of trial, the prosecution moved to dismiss count VI, possession of marijuana for sale, and the court granted the motion. The prosecutor did not explain why he moved for dismissal. Defense counsel did not move to bifurcate the ex-felon charges or exclude appellant’s status as an ex-felon.
During the trial, the prosecution raised appellant’s criminal history as Deputy Chapman testified about the search of appellant’s house.
“Q At any point in your investigating, did you look into [appellant’s] criminal history?
“A Yes.
“Q How did you do that?
“A We run a criminal history check on the computer. We type in his name, birth date, and we obtain prior arrest information. And the information also includes conviction information. [¶]…[¶]
“Q And did your search indicate to you that he had been convicted of felonies in the past?
“A Yes.
“Q And what did that mean to you?
“A That he was an ex-felon. And ex-felons are prohibited from carrying certain types of weapons. There’s also enhancements for people who have prior convictions, felony convictions.”
Chapman testified about the brass knuckles and ammunition recovered from appellant’s house. Chapman testified appellant was prohibited from possessing firearms and ammunition because he was an ex-felon. Chapman also testified that during his interview with Larios, he produced appellant’s prior booking photograph and Larios confirmed his identity. Larios also confirmed appellant’s identity through a wedding photograph which depicted appellant and Larios with their families.
After the parties rested, the prosecutor moved to dismiss count III, ex-felon in possession of ammunition, and count V, ex-felon in possession of a firearm, and acknowledged he failed to introduce evidence of the prior convictions that were alleged as to both counts. The court granted the motion.
Thereafter, the parties gave their closing arguments. In his closing argument, the prosecutor argued it was undisputed Larios was shot twice, and reviewed Larios’s statements to Deputies Stricker and Chapman. The prosecutor noted that Larios described the lengthy conflict with appellant in great detail, he repeatedly said his close friend had shot him, and he warned the officers to be careful when they picked him up. The prosecutor acknowledged the weapon was not found, but asserted appellant had time to discard the weapon in the hours between the shooting and the execution of the search warrant at appellant’s house. The prosecutor pointed out that appellant was not unfamiliar with handguns, based on the ammunition seized from his house. The prosecutor argued Larios’s trial testimony, in which he denied making any statements to the deputies, was not credible. The prosecutor did not refer to Deputy Chapman’s testimony about appellant’s prior convictions.
Defense counsel’s closing argument focused on the fact that Larios, the only eyewitness to the shooting, testified under oath that appellant did not shoot him, and Larios was under the influence of narcotics when he was shot and could not remember what happened. Defense counsel argued that Larios had repeatedly tried to straighten out his prior “silly statement he made when he was under the influence of methamphetamine.” Counsel argued Larios used drugs and engaged in a lifestyle in which people wanted to kill him, and that Larios even admitted there were other people who wanted to kill him. “When you have a lot of people that want to kill you, who are you going to blame, a friend or the guy that really wants to kill you? Think about it, ladies and gentlemen.”
Counsel argued the prosecution failed to produce the gun or any forensic evidence to connect appellant to the shooting, aside from a single .380-caliber bullet found inside a bathroom drawer at appellant’s house. The prosecution made “a big show” about the items found at appellant’s house, but that “looks like smoke and mirrors to me.”
Defense counsel argued Larios “tried to set this record straight three different times. He did it under oath twice, ” at the preliminary hearing and trial.
“… On the day in question, they’re all using drugs, drinking, God knows what else. My client admits he was over there earlier. They argue. He leaves. His wife testifies he was at home at the time this happened. When a lot of people want you dead and all of a sudden you have one bullet in your house, I hope nobody ever gets that evidence against them and gets sent to prison over one single lousy bullet.” (Italics added.)
Defense counsel argued his client admitted being at Larios’s house, but appellant did not testify or make any such statements when he was arrested. However, Larios testified appellant was at his house earlier and left before the shooting.
Counsel argued the officers poorly investigated the case and they could not blame appellant for their mistakes. All they had was “a lousy statement from somebody on methamphetamine who everybody in the world wanted to kill.”
In rebuttal, the prosecutor argued there was no evidence that a lot of people wanted to kill Larios, defense counsel failed to call a defense investigator about Larios’s alleged recantation of his statement, and the only eyewitness to the shooting repeatedly identified appellant as the shooter. The prosecutor further argued there was forensic evidence in the case, consisting of the blood trail and spent casings at Larios’s house, and similar ammunition found in appellant’s house. The prosecutor did not address appellant’s status as an ex-felon.
The court excused the jury and placed the instructional conference on the record. The court noted defense counsel did not request any lesser instructions, and the court determined there was no evidence to support attempted voluntary manslaughter as a lesser offense of count I, attempted murder, because there was no evidence of sudden heat of passion, provocation, or imperfect self-defense. The court also noted there was no evidence to support simple assault as a lesser offense of count II, assault with a deadly weapon, and the parties stipulated to great bodily injury.
Appellant was found guilty of count I, attempted murder, count II, assault with a firearm, and count IV, possession of a deadly weapon, brass knuckles, and the jury found the enhancements true.
B. Appellant’s Contentions
On appeal, appellant raises several issue of ineffective assistance of counsel, and contends defense counsel displayed a “laissez faire demeanor” which deprived appellant of a fair trial. First, he contends defense counsel should have moved to bifurcate or sever count III, ex-felon in possession of ammunition, and count V, ex-felon in possession of a handgun, from the charges based on the shooting of Larios. Appellant argues the trial court would have granted a severance motion because ex-felon counts were not relevant and had nothing to do with the primary charges of shooting Larios, and the evidence in support of those counts, that appellant was an ex-felon, only served to show that appellant “was a ‘bad guy.” Appellant argues bifurcation would have resulted in the exclusion of the ammunition and brass knuckles found at appellant’s house, none of these items was relevant to the shooting of Larios, and the evidence served no purpose except to show appellant was “a ‘bad guy’ who likes to hoard weapons paraphernalia.”
Appellant argues there is no satisfactory explanation for defense counsel’s failure to bifurcate the ex-felon charges, and counsel’s failure to act deprived him of a fair trial because Deputy Chapman testified, without objection, that appellant was an ex-felon and could not possess the ammunition and brass knuckles found at his house, and that a prior booking photograph was used to confirm Larios’s identification of appellant. Appellant asserts counsel’s omission was prejudicial because the jury learned of his prior felony convictions and “there is a reasonable probability that the outcome of the trial would have been much more favorable” to appellant.
Appellant raises other issues of ineffective assistance, based on the manner in which defense counsel objected to the prosecutor’s questioning of Larios, particularly when Larios denied that he made any prior statements to the sheriff’s deputies. Appellant acknowledges that defense counsel repeatedly objected to the prosecutor’s questions to Larios, but asserts the correct practice would have been for defense counsel to lodge a continuing objection to all aspects of Larios’s direct examination, “and avoid the possibility of annoying the jury with repeated objections.”
Appellant next complains that defense counsel failed to object to the prosecutor’s following question of Larios for lack of relevance.
“Q You don’t want to see Mr. Tovar go to prison, do you?
“A Why would I?”
Appellant complains defense counsel should have made another relevance objection to this testimony from Larios.
“Q Would—do you think—well, would you lie to keep your friend Mr. Tovar from getting in trouble?
“A I would not break the law. No, I wouldn’t.”
Appellant also complains defense counsel failed to raise a relevance objection to the prosecutor’s question to Deputy Stricker.
“Q And in your opinion—well, about how many times have you interviewed people who were high on drugs or drunk?
“A I’d say several over 100.”
Appellant next asserts defense counsel failed to object to the prosecutor’s use of leading questions with Deputy Chapman, when he asked about the gun holster found in the cargo trailer in appellant’s backyard.
“Q Is that [the gun holster] something one might carry a concealed weapon with?
“A One could, yes.”
Appellant declares another leading question objection should have been when the prosecutor asked Chapman about Larios’s statements.
“Q [Larios] made a statement to you that he was fearful of Mr. Tovar?
“A He was himself personally not fearful of him, but he was afraid for his family members.”
Appellant complains an objection for double hearsay should have been made when the prosecutor asked Chapman about Larios’s statements in his report.
“Q If it will refresh your recollection?
“A Yes. Mr. Tovar told Mr. Larios that it was serious and that Mr. Tovar was gonna [sic] return the following day and collect from either Mr. Larios or Fire.”
Appellant cites all of these exchanges as situations where defense counsel should have objected to the prosecutor’s questions, concedes the objections could have been overruled, but asserts counsel’s silence in the face of repeated improper questions was not a valid tactical choice and the “cumulative effect” allowed the prosecutor “to paint a portrait for the jury that [a]ppellant was a concealed weapon carrying, brass knuckle wearing thug who hoards ammunition in his bathroom drawers.”
Appellant’s final assignment of ineffective assistance is that counsel failed to request any curative instructions to advise the jury of the limited admissibility of his status as an ex-felon, so that such evidence would not have influenced the jury as to appellant’s guilt on any other charge. “Had not the disease of prejudice been allowed to infect the minds of the jury in the first place, there would have existed no need for any such cure. Nor would there now be any need to speculate on the intensity of the infection or how it may have determined the outcome of the trial.”
C. Analysis
We begin with the well-known standards for ineffective assistance. “… To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
On direct appeal, a reviewing court will reverse a conviction for ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) We presume that counsel’s conduct falls within the wide range of reasonable professional assistance and we accord great deference to counsel’s tactical decisions. (People v. Bolin (1998) 18 Cal.4th 297, 333.)
A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) “If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘“in the perilous process of second-guessing.”’ [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]” (People v. Diaz (1992) 3 Cal.4th 495, 557-558; People v. Lucero (2000) 23 Cal.4th 692, 728-729.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
In addition to showing counsel’s performance was deficient, the defendant must also show prejudice flowing from counsel’s performance or lack thereof. (People v. Williams (1997) 16 Cal.4th 153, 215.) Prejudice is shown when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland); In re Cox (2003) 30 Cal.4th 974, 1019-1020 (Cox).) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694; In re Neely (1993) 6 Cal.4th 901, 909; In re Jones (1996) 13 Cal.4th 552, 561.)
When an ineffective assistance claim can be resolved solely on lack of prejudice, a reviewing court need not determine whether counsel’s performance was objectively deficient. (Strickland, supra, 466 U.S. at pp. 697, 699-700; In re Jackson (1992) 3 Cal.4th 578, 604, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6; Cox, supra, 30 Cal.4th at pp. 1019-1020; People v. Boyette (2002) 29 Cal.4th 381, 430-431 (Boyette).) “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697; Cox, supra, 30 Cal.4th at pp. 1019-1020.)
This is such a case. Appellant raises numerous allegations of counsel’s deficient performance—failure to move for bifurcation, failure to object to evidence of his ex-felon status, failure to object to the prosecutor’s questions as irrelevant or leading—but he completely fails to address the impact of those alleged errors and/or omissions on the jury’s verdict—whether there was a reasonable probability the results would have been different if defense counsel had taken the actions now demanded. The evidence against appellant was overwhelming. Deputy Stricker testified he interviewed Larios at the hospital, Larios did not appear under the influence of alcohol or narcotics, Larios was initially hesitant, but he clearly stated that appellant, his best friend, had shot him about one hour earlier. Deputy Chapman testified that he interviewed Larios at the sheriff’s department later that day, Larios did not exhibit any signs of being under the influence of alcohol or narcotics, and Larios gave a detailed statement about the events leading up to the shooting. Larios repeatedly described appellant as his lifelong friend, and explained his initial hesitancy at the hospital was because he was in shock from being shot by his best friend.
In the face of this evidence, appellant complains that counsel’s failure to move for bifurcation or severance of the charges based on his ex-felon status was prejudicially ineffective, because the jury heard that he was an ex-felon and such evidence would have affected the jury’s evaluation of his credibility. In many cases involving ex-felon charges, a defendant may move for severance or even stipulate to his ex-felon status, so that the jury only considers the evidence of whether the defendant possessed the prohibited paraphernalia. In this case, however, defense counsel’s failure to sever or stipulate worked to appellant’s benefit, because the prosecutor completely failed to introduce competent evidence of his prior felony convictions and was compelled to dismiss those charges. If counsel had moved for severance or stipulated to his ex-felon status, the prosecutor could have avoided dismissal and appellant would have been faced with two additional felony convictions.
In any event, it is not reasonably probable the jury would have returned a more favorable verdict if Deputy Chapman’s references to appellant’s ex-felon status had been excluded or limiting instructions given. Appellant complains that such evidence destroyed his credibility to the jury. In the instant case, however, the disputed factual issue was Larios’s credibility, between his clear, coherent pretrial statements about appellant’s conduct, and his bizarre denials of those statements at trial. Larios did not claim the deputies did not accurately record his statements in his prior interviews. Instead, he completely denied giving any prior statements to any officer, that he spoke to anyone at the hospital, or that he had even been to the sheriff’s department. Larios testified he had no idea who shot him because he consumed a lot of alcohol and crystal methamphetamine in the hours prior to the shooting, but he never allowed for the possibility that he might have talked to a deputy. Larios testified Deputy Chapman briefly spoke to him at his own house, but denied making any accusations against appellant, claimed he had never heard of Fire or Crissy, and insisted no one lived at his house besides his immediate family. On this record, appellant has completely failed to demonstrate the prejudice from counsel’s alleged acts and/or omissions. (See, e.g., Boyette, supra, 29 Cal.4th at pp. 430-431.)
Appellant similarly fails to demonstrate prejudice from counsel’s failure to object to Deputy Chapman’s testimony about Larios’s statements, purportedly inadmissible as double hearsay. At trial, Larios was the first witness and steadfastly denied giving any statements to any law enforcement officer about the shooting. As such, Chapman properly testified to Larios’s prior inconsistent statements, and any objections based on multiple hearsay would have been overruled. (See, e.g., People v. Perez (2000) 82 Cal.App.4th 760, 764-767; People v. Zapien (1993) 4 Cal.4th 929, 952-955; People v. Pinholster (1992) 1 Cal.4th 865, 937-938.)
As for the relevancy and leading question issues, appellant concedes the objections might have been overruled. Indeed, counsel need not make meritless objections to avoid claims of ineffective assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 432.) Failure to object to leading questions certainly does not indicate incompetency; rather it sometimes is considered good trial technique not to object. (People v. Chavez (1968) 262 Cal.App.2d 422, 432.) Defense counsel could have concluded that relevancy and leading question objections would not have prevented the jury from hearing the substance of the deputies’ testimony because the prosecutor easily could have properly rephrased his questions and, if necessary, used the law enforcement reports to refresh the deputies’ recollection to elicit the same information that was coming out via leading questions. (See, e.g., People v. Hayes (1971) 19 Cal.App.3d 459, 471-472.)
We also reject appellant’s assertion that counsel engaged in a “laissez faire demeanor” at trial. Even a cursory review of the transcript reveals that defense counsel actively participated in the trial, extensively cross-examined the prosecution witnesses, and regularly objected. The assignments of error raised on appeal “do not establish that ‘the prosecution’s case was not subjected to meaningful adversarial testing.’ [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 261.)
Having considered the entirety of the record, we are satisfied that the evidence against appellant was extremely strong and counsel’s alleged acts and/or omissions would not have affected the outcome of this case. We thus reject appellant’s ineffective assistance claim because appellant has not established a reasonable probability that he would have received a more favorable verdict in the absence of defense counsel’s complained of errors and/or omissions. (Cox, supra, 30 Cal.4th at pp. 1019-1020; Boyette, supra, 29 Cal.4th at pp. 430-431; People v. Lucero (2000) 23 Cal.4th 692, 728-729, 735; In re Jackson, supra, 3 Cal.4th at pp. 604-605.)
II.
SUBSTANTIAL EVIDENCE
Appellant raises two issues in support of the contention that his convictions and enhancements are not supported by substantial evidence. He asserts that he could not have been the person who shot Larios, because the location of the shell casings found in Larios’s front yard were not consistent with the shots being fired from inside the truck. Appellant also raises another substantial evidence issue, tied together to another ineffective assistance issue, that defense counsel should have introduced evidence of third-party culpability which would have undermined the evidence against him—that it was Crissy, and not appellant, who shot at Larios.
We begin with the well-settled standards to assess the sufficiency of the evidence to sustain a criminal conviction. The reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on “‘isolated bits of evidence.’” (People v. Johnson, supra, 26 Cal.3d at p. 577; People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
Appellant argues there is insufficient evidence to support his convictions and attached enhancements, but curiously cites the standard for a trial court to consider a motion for acquittal pursuant to section 1118.1.
Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)
We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (People v. Bradford, supra, 15 Cal.4th at p. 1329.) We do not reweigh evidence or redetermine issues of credibility. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931 (Ferraez).)
An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) It must not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Pitts (1990) 223 Cal.App.3d 606, 884.) Furthermore, an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Jackson (1992) 10 Cal.App.4th 13, 21; People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) An appellate court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin, supra, 18 Cal.4th at p. 331.)
Appellant asserts his convictions are not supported by substantial evidence because there is a reasonable doubt that he was the person who shot Larios. Appellant contends that based upon the evidence collected at the shooting scene, “physical law trumps any other applicable law” and all reasonable inferences do not support his convictions. Appellant’s argument is based on the following evidence: In his pretrial statement to the deputies, Larios said he was shot in his front yard, that appellant was sitting in the driver’s seat of the truck, appellant leaned across Crissy in the passenger seat, he fired at Larios through the open passenger window, and Larios tried to evade the shots by moving toward the front of the truck. Appellant also points to the evidence that two shell casings were found in Larios’s front yard, one in the street by the curb and the other on the front lawn.
Based on this evidence, appellant declares it would have been impossible for him to have shot Larios from the driver’s seat, because the spent shells would have been ejected inside the truck’s cab, and appellant would have shot out his own windshield as Larios ran to the front of the truck. Appellant asserts it would “defy the laws of physics” for the spent casings to make “the incredible journey” and land outside the truck, on the street and the front lawn. Appellant thus concludes the evidence is insufficient, and defense counsel was prejudicially ineffective for failing to address this evidentiary problem.
There are several problems with appellant’s argument. First, Larios told the deputies that just before he was shot, he was inside his house and someone knocked on his door, he went into his front yard, and he discovered appellant and Crissy had returned in appellant’s truck. He never clarified the exact location of the truck, whether it was parked in the street or in a driveway, and he refused to offer such details in his trial testimony. Second, there was no evidence about the distance that shell casings would travel when ejected from a .380-caliber semi-automatic handgun. Deputy Chapman testified in a semi-automatic handgun, the bullets are stored in the magazine; when the gun is fired, an expended casing is removed and thrown through the action of the gun, and the new round is fed from the magazine into the firearm. The evidence did not foreclose the possibility that appellant was leaning near or through the passenger window as he fired, and the shell casings were ejected through that window.
Third, Larios’s account of the shooting is not internally inconsistent with the location of his wounds. Larios said he walked up to the passenger side of appellant’s truck, and the passenger window was rolled down. Appellant extended his arm across the truck’s cab, toward the open passenger window, and pointed the gun at Larios’s head. Larios stated he started to duck and appellant fired the gun. Larios moved toward the front of the truck and appellant continued to fire. Despite his evasive maneuvers, Larios was shot in the left arm and left leg. Larios was standing next to the passenger window as the shots were fired; he never said that he was shot as he stood in front of appellant’s truck, only that he ducked and moved toward the front as the shots were fired. Larios never clarified whether he was wounded by the initial shots or the later shots. Larios’s wounds to his left arm and leg are entirely consistent with appellant’s act of aiming the gun through the open passenger window as Larios tried to take evasive action.
Fourth, Larios’s account is not inconsistent with the location of the shell casings. Larios stated that he saw appellant reach across the cab and aim the gun at him. Larios further stated that he ducked and appellant fired the gun. Larios never said that he kept looking at appellant as the shots were fired. There is a strong inference that appellant could have continued to lean across the cab, through the open passenger window, as he continued to fire at Larios, which would have allowed for at least two of the casings to land outside of the truck.
Appellant contends that defense counsel was ineffective for failing to raise these issues. However, counsel’s attempts to undermine the accuracy of Larios’s pretrial statements would have been severely hampered by Larios’s complete refusal to testify about the shooting or his prior statements to the officers. Counsel extensively cross-examined the deputies who interviewed Larios, and brought out the absence of forensic evidence to reflect appellant had fired a gun, the gun used in the shooting, or to connect the bullet found in Larios’s clothing to the bullet found in appellant’s bathroom or the casings recovered from Larios’s front yard.
Appellant raises another attack upon the sufficiency of the evidence, which is also tied to another claim of ineffective assistance. Appellant contends defense counsel should have raised the possibility of third-party culpability, that Crissy actually fired the gun through the passenger window. Appellant asserts the trial evidence placed Crissy at the scene, she was sitting in the front passenger seat, such a theory would have been consistent with Larios’s wounds and the location of the shell casings, and it would have raised a reasonable doubt as to appellant’s guilt.
“‘A criminal defendant has a right to present evidence of third party culpability if it is capable of raising a reasonable doubt about his own guilt. The rule does “not require that any evidence, however remote, must be admitted to show a third party’s possible culpability .... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” [Citation.]’ [Citations.]” (People v. Panah (2005) 35 Cal.4th 395, 481; People v. Lewis (2001) 26 Cal.4th 334, 372; see also Holmes v. South Carolina (2006) 547 U.S. 319, ___ [126 S.Ct. 1727, 1733-1735].)
Appellant argues defense counsel was prejudicially ineffective for failing to raise the possibility that Crissy fired the gun through the front passenger window. The problem with this argument, however, is that Larios testified he never heard of Fire or Crissy, denied any knowledge of the complicated story which led to the shooting, and claimed he had no idea who shot him. In his closing argument, defense counsel acknowledged appellant was at Larios’s house earlier that day, but argued there was no evidence appellant was at the scene at the time of the shooting, and that Larios repeatedly tried to straighten out his prior “silly statement he made when he was under the influence of methamphetamine.” Instead, the defense theory was based on Larios’s testimony that he previously used and sold drugs, and there were people out there who wanted to see him dead. Based on that evidence, counsel raised the theory of third-party culpability and argued Larios engaged in a lifestyle in which people wanted to kill him. “When you have a lot of people that want to kill you, who are you going to blame, a friend or the guy that really wants to kill you? Think about it, ladies and gentlemen.”
As explained ante, a reviewing court will reverse a conviction for ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Fosselman, supra, 33 Cal.3d at p. 581.) We presume that counsel’s conduct falls within the wide range of reasonable professional assistance and we accord great deference to counsel’s tactical decisions. (People v. Bolin, supra, 18 Cal.4th at p. 333.) Defense counsel was presented with a situation in which the victim gave two detailed statements that appellant shot him. At trial, the victim not only recanted those accusations, but claimed he never spoke to any law enforcement officers about the shooting, and denied any knowledge of Fire, Crissy, or anyone other than his family living at his house. Appellant’s wife testified appellant was with her all evening, further eliminating the possible argument that appellant was sitting in the driver’s seat while Crissy shot Larios. Counsel seized on Larios’s admission that he previously sold drugs, as the basis for the argument that Larios’s own conduct led to the shooting, and argued Larios was being evasive because he did not want to implicate himself in criminal activities. On this record, we cannot say that counsel’s tactical defense decisions were prejudicially ineffective.
III.
CUNNINGHAM/BLAKELY
At the sentencing hearing, the court imposed the upper term of nine years for count I, attempted murder, with a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The court imposed and stayed the upper term for count II, assault with a firearm. Appellant has not raised any issues as to the imposition of the upper terms, but in light of the United States Supreme Court’s recent ruling in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), we will review the record to determine if the matter must be remanded for resentencing.
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): “‘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.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (United States v. Booker (2005) 543 U.S. 220, 244.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on California’s Determinate Sentencing Law (DSL) and held the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, supra, 35 Cal.4th at p. 1244.)
In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the court disapproved Black I and held the DSL violates a defendant’s Sixth and Fourteenth Amendment rights to a jury trial to the extent it permits a trial court to impose an upper term based on facts—other than the fact of a prior conviction—found by the court rather than by a jury beyond a reasonable doubt.
“As this Court’s decisions instruct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466 … (2000); Ring v. Arizona, 536 U.S. 584 … (2002); Blakely v. Washington, 542 U.S. 296 … (2004); United States v. Booker, 543 U.S. 220 … (2005). ‘[T]he relevant “statutory maximum, ”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ Blakely, 542 U.S., at 303-304 … (emphasis in original).... [¶] ... [¶]
“… Contrary to the Black court’s holding, our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 860, 871, fn. omitted].)
The California Supreme Court recently reconsidered Black I in light of Cunningham. In People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 D.A.R. 11041] (Black II), the court noted that Blakely “explicitly recognized the legitimate role of ‘judicial factfinding’ in indeterminate sentencing, in which the judge may ‘implicitly rule on those facts he deems important to the exercise of his sentencing discretion.’ [Citation.]” (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11045].) Accordingly, Black II held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11045].)
“The facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ [Citation.]” (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11045].)
Black II held “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s DSL, and concluded that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’” for Sixth Amendment purposes. (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11045, fn. omitted], citing People v. Osband (1996) 13 Cal.4th 622, 728 .)
“[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11046-11047, italics added].)
Black II further explained:
“... [U]nder the DSL the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The [trial] court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional.” (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11046].)
As to factual circumstances in Black II, the defendant was convicted of one count of continuous sexual abuse of a child (§ 288.5), and two counts of lewd and lascivious conduct with a child (§ 288, subd. (a)). The jury found true the special allegations the defendant committed continuous sexual abuse by use of force, violence, duress, menace, and fear of immediate and unlawful bodily injury; he had substantial sexual conduct with a victim under the age of 14 years; and he committed specific sexual acts with more than one victim. (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11042].) The trial court imposed upper and consecutive terms based on the nature, seriousness, and circumstances of the crime, and the defendant’s lengthy criminal record. (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11042, 11047-11048].)
Black II found the trial court’s imposition of the upper term did not violate Cunningham “because at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term.” (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11041-11042].)
“[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 fact finding 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.” (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11044-11045].)
The trial court’s reliance on the nature, seriousness, and circumstances of the crime as an aggravating circumstance did not violate Cunningham because the jury found the force and violence special allegation true beyond a reasonable doubt. (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11047].) “Because the jury found this allegation to be true, the ‘maximum sentence’ that could be imposed ‘solely on the basis of the facts reflected in the jury verdict or admitted by the defendant’ [citation] was the upper term.” (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11047].) As for appellant’s criminal history, Black II noted that “[t]he United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘Recidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11047].) Black II held the prior conviction exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions, ” such as the defendant’s prior convictions being numerous and of increasing seriousness. (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11048].)
Finally, Black II reaffirmed Black I’s holding that the imposition of consecutive sentences did not violate a defendant’s Sixth Amendment rights. Black II noted that consecutive sentences were not addressed in Cunningham, and there was nothing in Cunningham to undermine Black I’s analysis of that issue. (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11049-11050].)
In People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [2007 D.A.R. 11051], the court addressed the application of a harmless error analysis to situations where the trial court imposed the upper term based on aggravating circumstances that were not within the exceptions set forth in Blakely, i.e., not based upon the defendant’s criminal record, admitted by the defendant, or established by the jury’s verdict. (People v. Sandoval, supra, ___ 4th ___ [2007 D.A.R. 11051, 11054-11055].)
In the instant case, the probation report stated appellant suffered several prior convictions. In 1993, he was sentenced to 16 months in prison for felony possession of a controlled substance for sale (Health & Saf. Code, § 11378), and misdemeanor carrying a concealed weapon in a motor vehicle (Pen. Code, § 12025, subd. (a)). In 1993, he was sentenced to four years eight months in prison for possession for sale (Health & Saf. Code, § 11351). In 1996, he was convicted of transportation of a controlled substance (Health & Saf. Code, § 11379), his sentence was suspended, and he was committed to the California Rehabilitation Center.
The probation report identified as aggravating factors that appellant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent terms were being imposed; appellant engaged in violent conduct which indicated a serious danger to society; appellant’s prior convictions were numerous or of increasing seriousness; appellant served a prior prison term; and appellant’s prior performance on probation or parole was unsatisfactory. There were no mitigating factors.
At the sentencing hearing, defense counsel presented the court with numerous letters from appellant’s family and friends, attesting to his character and requesting leniency. The prosecutor argued the court should impose the upper term for attempted murder based on his prior felony convictions and the commission of a violent crime.
The court noted that appellant was very fortunate he only faced an attempted murder charge rather than first degree murder for pointing a gun at his best friend’s head. “He has a lengthy record. And it appeared that he was involved in other criminal activity at the time that this incident took place.” Defense counsel acknowledged the seriousness of the offense but asked the court to exercise whatever discretion it had in appellant’s favor.
The court found appellant was not eligible for probation pursuant to section 12022.53, subdivision (g), and imposed the upper terms for count I, attempted murder, and count II, assault with a firearm. The court found the aggravating factors as set forth in the probation report, that appellant was convicted of other crimes for which consecutive sentences could have been imposed, he had engaged in violent conduct indicating a serious danger to society, his prior convictions were numerous or of increasing seriousness, he served a prior prison term, and his prior performance on probation or parole was unsatisfactory. The court found no mitigating factors.
As in Black II, the trial court’s imposition of upper terms in this case does not violate Cunningham because the court relied upon the aggravating circumstance that appellant’s prior convictions were numerous and of increasing seriousness, such that “at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements.” (Black II, supra, __ 4th __ [2007 D.A.R. 11041].) As Black II explained, only a single aggravating factor is required to impose the upper term. (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11046-11047]; People v. Osband, supra, 13 Cal.4th 622, 728.) The court properly imposed upper terms because it relied on appellant’s record of prior convictions, and any additional fact finding did not violate his right to jury trial. (Black II, supra, __ 4th __ [2007 D.A.R. 11041, 11044-11045, 11046-11047].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., DAWSON, J.