Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. INF053543. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant Manuel Vega.
Douglas G. Benedon, under appointment by the Court of Appeal, for Defendant and Appellant Cynthia V. Gonzalez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Scott Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant, Claudia Gonzalez, got into a dispute over a stolen laptop. To assist her in resolving the dispute, she brought her brother, defendant Manuel Vega, along as backup. Together, they went to an apartment where the laptop was located. When the laptop was not produced, Vega stabbed a nearby victim.
Vega was charged with one count of assault with a deadly weapon with great bodily injury (Pen. Code, § 245, subd. (a)(1)), one count of residential robbery (§ 211) with an enhancement that he personally used a knife in the commission of the robbery (§ 12022, subd. (b)(1)), and one count of residential burglary (§ 459) with an allegation that another person, other than an accomplice, was present in the residence. (§ 667.5, subd. (c)(21).) It was also alleged that Vega had three strike priors, two serious felony priors and two prison priors. (§§ 667, subds. (c) & (e)(1), 1170.12 subd. (c)(1), 667, subd. (a), 667.5, subd. (b).)
All further statutory references will be to the Penal Code unless otherwise indicated.
Gonzalez was charged with one count of residential burglary (§ 459), with an allegation that another person, other than an accomplice, was present in the residence (§ 667.5, subd. (c)(21)), and two counts of attempting to dissuade witnesses from testifying. (§ 136.1, subd. (a)(2).)
After a jury trial, both defendants were found guilty of all charges and enhancements.
In a bifurcated court trial, the trial judge found Vega’s priors were true. The court sentenced Vega to 35 years to life (25 years to life for the assault, pursuant to the “Three Strikes” law, plus two five-year terms for each of the serious prior offenses). The court struck the punishment for the prison priors.
Gonzalez was sentenced to 12 years in prison (the upper term of six years for residential burglary, two years for each dissuading witness count, and two years for committing a felony while on bail).
On appeal, Vega argues: (1) Judicial Council of California Criminal Jury Instructions, CALCRIM No. 376 lowered the prosecution’s burden of proof because it allowed the jury to infer guilt from possession of recently stolen property; (2) there was insufficient evidence he suffered a prior strike; and (3) he could not be concurrently sentenced for both the burglary and robbery convictions. The People concede that there was insufficient evidence that Vega suffered a prior strike. We agree with the parties and remand the matter for resentencing on that issue. In all other aspects, we affirm the judgment of conviction against Vega.
Gonzalez argues that she was improperly sentenced to the upper term. We reject Gonzalez’s claim and affirm her judgment of conviction in its entirety.
FACTUAL AND PROCEDURAL HISTORY
Linda Burger rented an apartment from defendants’ father. Gonzalez lived next door and Vega lived in a house behind the apartment. On February 13, 2006, Burger purchased a new laptop computer which was stolen four days later.
On February 21, a man named Aldo borrowed money from Robert Rios, using Burger’s laptop as collateral to secure the loan. That same day, Rios’s uncle Moises Leon, and his neighbor Nereo Cruz, were visiting Rios in his apartment. While Leon was outside the apartment, he saw a woman in a white van driving around Rios’s apartment. She asked Leon where Rios lived, and Leon pointed out Rios’s apartment.
Rios lived in a garage that had been converted into a studio apartment.
The woman went to the apartment and asked Rios for the laptop. Rios told her the laptop was at his mother’s house, but if she came back with Aldo, he would give her the computer.
The woman soon returned with three other men, but not Aldo. Cruz recognized Gonzalez at the door, and her brother Vega, as he had known them for the past 10 years and had gone to school with them.
Rios and Gonzalez argued about the return of the laptop. Gonzalez shoved Rios in the chest and pushed her way through the door with Vega following behind her. Gonzalez told Rios that the laptop belonged to her and she wanted it back. She further said that if Rios did not return her laptop, she would start taking his property and load up her van with his stuff.
Rios picked up his cell phone and threatened to call 911. Vega grabbed the cell phone out of Rios’s hand and put it in his pocket.
Leon, sensing trouble, called 911 on his cell phone. While Leon was on the phone with the dispatcher, Vega tried to kick the phone out of Leon’s hand. Vega told Leon to “let [Gonzalez] do her thing,” walked up to Leon, pulled a knife out of his pants, and stabbed Leon in the stomach.
Vega took Rios’s cell phone and a BB gun that was on the bed. Vega and Gonzalez left in a white van with no plates, traveling in the direction of Coachella.
Leon informed the dispatcher that he had been stabbed. Leon told the dispatcher that the intruders were ”Mexican,” one big girl and a guy who were brother and sister. Rios told police that the two referred to each other as Manuel and Claudia. He recognized Manuel as someone who lived on Second Street in Coachella.
Police knew of defendants’ address and went to their residence on Second Street. The deputies looked for, but did not see a white van, so they parked approximately one block away to survey the residence. Five to six minutes later, a white van pulled into the driveway.
Gonzalez exited the van and walked towards the house. When police asked her about Vega, she said she had not seen him in a week. Inside the van, deputies found Rios’s BB gun.
Approximately 30 minutes later, police saw Vega come out of a small shed in the back yard. Inside the shed was a clothes dryer and inside the dryer was Rios’s cell phone.
DISCUSSION
A. CALCRIM No. 376 Does Not Impermissibly Reduce the Prosecution’s Burden of Proof.
CALCRIM No. 376 provides:
“Possession of Recently Stolen Property as Evidence of a Crime[.]
“If you conclude that the defendant knew (he/she) possessed property and you conclude that the property had in fact been recently (stolen/extorted), you may not convict the defendant of [insert crime] based on those facts alone. However, if you also find that supporting evidence tends to prove (his/her) guilt, then you may conclude that the evidence is sufficient to prove (he/she) committed [insert crime].
“The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove (his/her) guilt of [insert crime].
“[You may also consider whether (insert other appropriate factors for consideration).]
“Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
Vega contends the instruction’s reference to “slight evidence” lowered the prosecution’s burden of proof to prove the robbery or burglary beyond a reasonable doubt. He maintains that People v. Snyder (2003) 112 Cal.App.4th 1200 (Snyder), was wrongfully decided in that Snyder illogically allows “slight” corroborating evidence to dilute the reasonable doubt standard. Rather, he insists that we should instead apply the Fifth and Seventh Circuit Court cases of United States v. Gray (5th Cir. 1980) 626 F.2d 494, 500, United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1255-1256, and United States v. Durrive (7th Cir. 1990) 902 F.2d 1221, 1229, footnote 6.
To begin, we reject the People’s claim that failure to object below waives the matter on appeal. When an appellant raises an issue of the burden of proof implicating his substantial rights, the matter is not waived for failure to object below. (§ 1259; People v. Holmes (2007) 153 Cal.App.4th 539, 544.)
Next, we reject Vega’s request to apply federal precedent. State courts are not bound by decisions of lower federal courts on federal questions, even if they are in conflict with state decisions. (People v. Avena (1996) 13 Cal.4th 394, 431.)
Finally, legion are the California cases which find that CALCRIM No. 376 (and its predecessor CALJIC No. 2.15) properly requires all elements of a theft crime be proved beyond a reasonable doubt. (See, e.g., People v. Prieto (2003) 30 Cal.4th 226, 248; People v. Yeoman (2003) 31 Cal.4th 93, 130-132; People v. Mendoza (2000) 24 Cal.4th 130, 176-177; People v. Smithey (1999) 20 Cal.4th 936, 978; People v. Holt (1997) 15 Cal.4th 619, 677; People v. Johnson (1993) 6 Cal.4th 1, 36-38; People v. McFarland (1962) 58 Cal.2d 748, 754-755; People v. Anderson (2007) 152 Cal.App.4th 919, 949; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1035-1036; Snyder, supra, 112 Cal.App.4th at p. 1226; People v. Williams (2000) 79 Cal.App.4th 1157, 1173-1174.) We are duty bound to follow the California Supreme Court’s holding that the instruction does not “absolve[] the prosecution of its burden [to establish] guilt beyond a reasonable doubt.” (People v. Prieto, supra, at p. 248; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
And the rationale behind the principle is sound. A permissive inference does not violate the due process clause if the suggested conclusion is one of reason and common sense justified in the light of the proven facts before the jury. (Francis v. Franklin (1985) 471 U.S. 307, 314-315.) A jury may accept or reject the inference based on its evaluation of the evidence. (Snyder, supra, 112 Cal.App.4th at p. 1226.) It is not the mere possession of the stolen property which automatically means a burglary or a robbery was committed. The instruction requires other evidence to corroborate those offenses. If the jury did not believe that Vega entered the apartment to commit a felony and once inside committed a robbery, the jury would have to find that theft crimes were not committed. Thus, the words of the instruction prevent the evil which Vega fears—it prevents jurors from inferring a crime was committed just because Vega possessed stolen property.
Consequently, we conclude that CALCRIM No. 376 does not lower the prosecution’s burden to prove the theft offenses beyond a reasonable doubt.
B. Concurrent Sentences for Both the Robbery and the Burglary Does Not Violate Section 654.
The trial court sentenced Vega to 25 years to life for the assault with a deadly weapon (the knife) pursuant to the Three Strikes law. It also sentenced Vega to 25 years to life for the burglary and 25 years to life for the robbery. The trial court ordered the sentences to run concurrently because they occurred at the same time and in the same place. It also found there were different victims.
Vega claims the trial court violated section 654 when it sentenced him to concurrent terms for the robbery and the burglary. He asserts that both the burglary and the robbery only had one objective—to steal the laptop from Rios. He states that Gonzalez committed a violent act when she pushed Rios in the chest so that she and Vega could force their way into an occupied home. Gonzalez then threatened to take Rios’s property if he did not give her the laptop. Vega asserts that it was foreseeable that Rios would resist by threatening to call the police on his cell phone and, when Vega frustrated that call by taking Rios’s cell phone, that Leon would alert the police by calling on his cell phone.
We conclude that the trial court correctly imposed separate, concurrent sentences for the burglary and the robbery.
Section 654, subdivision (a), prohibits multiple sentences for a single act or for a course of conduct comprised of indivisible acts. “‘The protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.’ [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 268.)
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) It does not depend on the temporal proximity of the offenses. (In re Hayes (1969) 70 Cal.2d 604, 609.) We look to whether the course of conduct was an “indivisible transaction.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
The well established rule is that a separate punishment may be imposed for each offense when a defendant has multiple criminal intents and objectives, even if the offenses were part of an otherwise indivisible course of conduct. (People v. Alvarado (2001) 87 Cal.App.4th 178, 196; People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.) A court acts in excess of its jurisdiction if it imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. (People v. Hester (2000) 22 Cal.4th 290, 295.)
The issue of “[w]hether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) A trial court’s express or implied findings of a defendant’s intent or objectives will be upheld on appeal if supported by substantial evidence. (People v. Green (1988) 200 Cal.App.3d 538, 543-544.) When the court makes no express finding, we will presume a finding of multiple objectives and uphold the implied finding whenever it is supported by substantial evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) “We must ‘view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
To commit the burglary, Gonzalez pushed Rios in the chest and then she and Vega entered the apartment. Gonzalez angrily told Rios that if he did not give her the laptop, she would start taking his belongings and load up her van.
Leon and Cruz were sitting on the bed that was 12 feet away from the front door. On a corner of the bed near the pillows close to the wall lay a BB gun. The BB gun was closest to Leon.
Rios did not want Gonzalez to take his belongings, so he pulled out his cell phone and threatened to call the police if they did not leave. Vega said, “‘no, you are not calling the police,’” and grabbed the phone out of Rios’s hand. Rios did not fight back or hold onto the phone.
Leon then got up from the bed while trying to call 911 with his cell phone. Vega told Leon, “you are not calling the police.” Vega kicked Leon’s forearm to dislodge the phone out of Leon’s hand.
Rios yelled at Vega to keep back. Vega then stabbed Leon with a knife.
Vega grabbed the BB gun and told Rios to “get over here, come here.” Rios refused to comply because Vega had the BB gun in his hand. Leon, Cruz, and Rios never picked up the BB gun.
Vega left with Rios’s BB gun and cell phone.
Rios did not try to stop Vega from leaving with the BB gun because he wanted them to leave. He did not want to stop Vega from taking his property because he was afraid that Vega would hit him back. Rios did not think it was worth it to stop Vega from taking a $50 BB gun and a cell phone. As Vega and Gonzalez left, Gonzalez said, “I’ll be back este.”
In this instance, there was sufficient evidence to impose a separate punishment for both the burglary and the robbery.
The case of People v. Perry (2007) 154 Cal.App.4th 1521 (Perry) recognized that section 654 has been inconsistently applied in cases where property is taken in a burglary and violent efforts are used to thwart the theft. Perry explained that there is a distinction between cases involving burglary and robbery and cases involving burglary and assault. (Perry, at p. 1526.)
“The application of Penal Code section 654 appears somewhat inconsistent in cases in which property is taken in a burglary and ensuing efforts to thwart the theft are met with violence, forceful resistance, or threats of violence. There nonetheless appears to be a general distinction between cases addressing convictions of burglary and robbery and cases addressing burglary and assault convictions. (See, e.g., People v. Guzman (1996) 45 Cal.App.4th 1023 [section 654 barred punishment for both burglary, in which motorcycle was taken from garage, and robbery, in which force was used against pursuing victim attempting to stop culprits]; People v. Le (2006) 136 Cal.App.4th 925 [the People conceded, and the court agreed, section 654 barred punishment for both burglary in which goods were shoplifted from drugstore and force used against store employees attempting to prevent thieves from leaving with goods]; People v. Vidaurri (1980) 103 Cal.App.3d 450 [multiple punishment permissible for burglary in which goods stolen from store and numerous assaults with a deadly weapon upon store employees attempting to prevent thieves from leaving with goods and innocent bystanders]; People v. McGahuey (1981) 121 Cal.App.3d 524 [multiple punishment permissible for burglary in which money and hatchet stolen from home and assault with a deadly weapon in which defendant threw hatchet through window from outside house at victim who was calling police].)” (Perry, supra, 154 Cal.App.4th at p. 1526.)
Perry aptly noted there was a difference between the intent required for robbery and the intent for assault. Assault reflects an intent to apply physical force to another person. Robbery, rather, reflects an intent to deprive the victim of property by using force or fear. An assault on the victim during an escape with property taken during a burglary is an attempt to apply force on a person, and not an intent to steal property. (Perry, supra, 154 Cal.App.4th at p. 1526.)
Gonzalez brought her brother Vega to the apartment to intimidate Rios in order to get back the laptop. Vega’s intent on entering the apartment was to assist his sister in stealing the laptop from Rios. Vega’s intent in taking Rios’s cell phone was to thwart a call to police allowing him and his sister to escape without interference, and not for the property’s value. Grabbing Rios’s cell phone was included within Vega’s objective to steal the laptop. The incidental objective of preventing the victim from sounding the alarm to secure his escape was a part of the robbery, rather than an independent objective separate from stealing the property. (Perry, supra,154 Cal.App.4th at pp. 1526-1527.) Thus, for the burglary and the robbery, multiple punishment is barred.
However, the analysis does not end there.
There is a distinct difference in Vega’s intent for taking Rios’s BB gun. Vega grabbed the BB gun off the bed and then told Rios to “come here.” Rios was afraid to leave his shelter behind the television because he was afraid of being stabbed and Vega had the BB gun in his hand. Vega’s use of the knife and holding the BB gun in his hand was part of the force and fear Vega used to make Rios “come,” not to keep him at bay in order to facilitate an escape. Ordering Rios to “come here” by threatening him with the BB gun was gratuitous violence against a helpless and unresisting victim. Vega’s use of the BB gun went beyond what was necessary to rob Rios of the laptop and cell phone. Once Vega neutralized any potential resistance by the victims, assaulting Rios with the BB gun was done for an independent reason, apart from robbing Rios of his cell phone. (People v. Nguyen (1988) 204 Cal.App.3d 181, 191, implicitly overruled on grounds in People v. King (1993) 5 Cal.4th 59.) Vega’s threatening Rios with the BB gun evinces “‘a different and a more sinister goal than mere successful commission of the original crime.’. . .” (Perry, supra,154 Cal.App.4th at p. 1527.) Thus, we conclude that multiple punishments for both the burglary and the robbery are permitted.
Vega was never charged with assaulting Rios with the BB gun.
C. There Was Insufficient Evidence of Great Bodily Injury to Support Vega’s Prior Battery Conviction.
Vega argues that in a bifurcated court trial on his prison priors, the prosecutor only proved that he suffered a prior conviction for battery. She did not prove that Vega inflicted serious bodily injury on the victim.
The People concede the point, stating that there was no evidence presented that Vega personally inflicted great bodily injury (as opposed to aiding and abetting another) and there was no evidence that Vega was the principal and not an accomplice.
We agree with the parties’ concession. Because the documents produced by the prosecutor did not show that Vega admitted inflicting great bodily injury and did not show that Vega personally inflicted great bodily injury, there was insufficient evidence to prove the trial court’s finding that the prior conviction qualified as a serious felony. (People v. Bueno (2006) 143 Cal.App.4th 1503, 1508.)
Consequently, we remand the matter to the trial court for retrial and sentencing. (People v. Monge (1997) 16 Cal.4th 826, 845.)
D. Gonzalez Was Properly Sentenced to the Upper Term.
The trial court sentenced Gonzalez to the upper term of six years in prison for the residential burglary offense. It found several aggravating factors which allowed imposition of the upper term: the burglary involved violence, Gonzalez had planned the crime, she involved others in committing the crime, her criminal history showed that over time her crimes increased in seriousness, and finally, she was on probation at the time of the offense and had performed poorly while on probation.
Citing Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 863-864] (Cunningham), Gonzalez complains that she was improperly sentenced to the upper term because a judge determined what the aggravating factors were, and not beyond a reasonable doubt by a jury. We conclude the trial court properly sentenced Gonzalez to the upper term because Gonzalez was on probation at the time of the offense, and her recidivism was of increasing seriousness.
1. On Probation at the Time of the Offense.
The Sixth Amendment compels any fact, which exposes a defendant to a greater potential sentence, be found by a jury—not a judge—and established beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval), citing, Cunningham, supra, 127 S.Ct. at pp. 863-864.) Under Cunningham, the midterm was the “statutory maximum” that a judge may impose based on the facts found in the jury’s verdict alone, without a judge finding any additional aggravating facts. (Cunningham, at pp. 870-871.)
However, a trial judge is not limited to the midterm and thus may impose the upper term in two instances: (1) if a defendant admits a fact, or (2) a defendant has suffered a prior conviction. (Sandoval, supra, 41 Cal.4th at pp. 836-837.)
The exception to the jury trial right for prior convictions, “is not limited simply to the bare fact of a defendant’s prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a ‘violent’ felony) that renders the defendant subject to an enhanced sentence.” (People v. McGee (2006) 38 Cal.4th 682, 704 (McGee).) There is a difference between “sentence enhancements that require fact-finding 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 [v. New Jersey (2000) 530 U.S. 466 (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.’” (Id. at p. 709.)
McGee, supra, 38 Cal.4th at pages 700-701, specifically approved cases such as People v. Thomas (2001) 91 Cal.App.4th 212 (Thomas), which held that: “In terms of recidivism findings that enhance a sentence and are unrelated to the elements of a crime, Almendarez-Torres [v. United States (1998) 523 U.S. 224 (Almendarez-Torres)] is the controlling due process authority. Almendarez-Torres does not require full due process treatment of an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. Apprendi did not overrule Almendarez-Torres. The language relied upon by defendant in Apprendi, ‘[o]ther than the fact of a prior conviction,’ refers broadly to recidivism enhancements which include section 667.5 prior prison term allegations.” (Id. at pp. 222-223.)
Recently, the court in People v. Black (2007) 41 Cal.4th 799, 820 (Black) again reiterated that Almendarez-Torres should be read expansively to include issues related to a prior conviction that can be determined by examining the records of the prior convictions: “As we recognized in McGee, supra, numerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citation.]” (Black, at p. 819, fn. omitted.) Defendant’s criminal history, the court concluded, established an aggravating circumstance that satisfied the Sixth Amendment and rendered him eligible for the upper term. (Ibid.)
McGee and Thomas make it clear that the fact that defendant was on probation or parole at the time of the current offense is a fact intrinsically related to a prior conviction, and may be found by the trial court. Once having found that fact, the trial court may properly use it to impose an upper term sentence without violating Cunningham. We therefore find that the trial court did not indulge in the kind of improper factfinding which Cunningham subsequently held was a violation of the Sixth Amendment right to a jury trial.
2. Prior Convictions.
In Black, the California Supreme Court held that a defendant’s criminal history rendered him eligible for the upper-term sentence under the section 1170, subdivision (b) determinate sentencing law. (Black, supra, 41 Cal.4th at pp. 813, 818.) The court noted that the United States Supreme Court has consistently said the right to a jury trial does not apply to the fact of a prior conviction, citing Cunningham, supra, 127 S.Ct. at page 868, Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi, supra, 530 U.S. at page 490, and Almendarez-Torres, supra, 523 U.S. at page 243. “[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” (Almendarez-Torres, at p. 243; Black, at p. 818.)
In this instance, Gonzalez suffered two prior convictions. California Rules of Court, rule 4.421(b)(2) specifies that it is an aggravating circumstance that “defendant’s prior convictions . . . are numerous or of increasing seriousness.” The fact that defendant had at least one prior conviction made him subject to the imposition of the upper term. As long as there exists a single aggravating factor that renders a defendant eligible for the upper term, that single circumstance is sufficient to impose the upper term. (Black, supra, 41 Cal.4th at pp. 813, 816.)
The trial court’s finding that defendant’s prior convictions were numerous and of increasing seriousness, is part and parcel of a court’s inherent power to impose increased punishment for a prior conviction. “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness,’ . . . require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black, supra, 41 Cal.4th at pp. 819-820, fn. omitted.) The fact that a prior conviction occurred allows a trial court to assess related issues regarding the nature of the conviction that may be determined by those records, including whether those convictions were numerous or serious. (Id. at p. 819; McGee, supra, 38 Cal.4th at p. 704.) In this instance, the upper term was appropriately imposed because the trial court could properly find defendant’s prior convictions were numerous and increasingly serious.
DISPOSITION
As to defendant Vega, the trial court is directed to vacate its finding that Vega suffered a serious felony prior for battery with great bodily injury and remand the matter for retrial on this limited issue and to resentence Vega accordingly. In all other respects, the judgments are affirmed.
We concur: GAUT, Acting P.J., KING, J.