Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, William Sterling, Judge. No. BA325860. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen, Steven E. Mercer and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Frank William Yniguez appeals from the judgment entered following a jury trial that resulted in his convictions for second degree robbery and attempted grand theft auto. Yniguez was sentenced to a term of 15 years in prison.
Yniguez contends the trial court (1) committed Cunningham/ Blakely error by imposing an upper term sentence, and (2) erred by instructing the jury with CALCRIM No. 300. Discerning no error, we affirm.
Cunningham v. California (2007) 549 U.S. 270; Blakely v. Washington (2004) 542 U.S. 296.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established the following. On July 17, 2007, at approximately 3:20 a.m., Inocente Hernandez parked his car in his apartment complex’s garage. Yniguez, who had a gray sweater wrapped around his head so that only his eyes were visible, pointed a gun at Hernandez and ordered him to the ground. Yniguez went through Hernandez’s pockets and took his wallet, keys, cellular telephone, and approximately $80 in cash.
Yniguez then attempted to start another car in the garage with Hernandez’s key. When it failed to start, Yniguez jumped a wall and spoke with two women who were waiting on the other side, returned to the garage, and attempted to start the other car again. When he was unsuccessful a second time, he jumped the wall and departed. Meanwhile, Hernandez’s neighbor, Hugo Ventura, heard his car alarm sound. He observed two women remove a backpack from a blue car parked on the street. The women ran toward an alley. Ventura called 911. He then saw Yniguez, who was wearing dark jeans and a striped shirt, jump the wall. Yniguez and the women ran through the alley.
Police found Yniguez and one of the women hiding in a dumpster approximately one block from the apartment complex. Yniguez’s striped shirt and gray sweater were found in the dumpster. Co-defendant Valerie Martinez was found approximately 15 feet from the dumpster. Martinez was in possession of a backpack containing Hernandez’s wallet and telephone. Hernandez’s car key and alarm remote, as well as $80, were found in Yniguez’s pocket. A loaded handgun, identified by Hernandez as the one used by Yniguez, was found on top of an awning near the dumpster.
In a field showup, Ventura identified Yniguez, Martinez, and the other woman as the persons he had seen. Hernandez was unable to identify the subjects, but identified the gray sweater and striped shirt as those worn by the robber. Damage to Ventura’s ignition and a brake locking mechanism suggested Yniguez had attempted to steal Ventura’s car.
Yniguez presented a mistaken identity defense.
2. Procedure.
Trial was by jury. Yniguez was convicted of second degree robbery (Pen. Code, § 211) and attempted grand theft auto (§§ 664, 487, subd. (d)(1)). The jury found Yniguez personally used a firearm in commission of the robbery (§ 12022.53, subd. (b)). Upon the People’s motion, the trial court dismissed allegations that Yniguez had served two prior prison terms within the meaning of section 667.5, subdivision (b). Yniguez was sentenced to a term of 15 years in prison, consisting of the upper term of 5 years for the robbery, plus 10 years for the firearm enhancement. The trial court ordered Yniguez to pay restitution to the victim and imposed a restitution fine, a suspended parole restitution fine, a court security fee, and a crime prevention fee. Yniguez appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Imposition of an upper term sentence did not violate Yniguez’s jury trial or due process rights.
a. Additional facts.
At sentencing, the trial court indicated it was imposing the upper term of five years for the robbery. The court explained it selected the upper term due to Yniguez’s prior criminal record. The court stated: “Based on his record, which is extensive–I’m not going to repeat it. It’s in the probation report and documented in the probation report–I believe that high term is appropriate. I actually might have considered additional time, consecutive time for... count 2.... I think it’s more than justified by the defendant’s record.” When responding to Yniguez’s statements at the sentencing hearing, the court further opined: “I could have given you another two years and four months as a total sentence. I didn’t max you out.... Based on your record alone, I could easily justify all of it, and I think you’re catching a break here. [¶]... I think that the offense speaks for itself and your record speaks for itself.”
b. Imposition of the upper term did not constitute Cunningham error.
Yniguez argues that the trial court’s imposition of the upper term sentence was based upon facts that were neither admitted nor found true by a jury in violation of his Fifth, Sixth and Fourteenth Amendment rights to a jury trial and due process. (Blakely v. Washington, supra, 542 U.S. 296; Cunningham v. California, supra, 549 U.S. 270; Apprendi v. New Jersey (2000) 530 U.S. 466.) We disagree.
(i) Applicable legal principles.
In Apprendi v. New Jersey, supra, 530 U.S. at page 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the court held that the version of California’s determinate sentencing law (DSL) then in effect violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 549 U.S. at pp. 292-293; People v. Black (2007) 41 Cal.4th 799, 805 (Black II); People v. Sandoval (2007) 41 Cal.4th 825, 831-832.)
In Black II, our Supreme Court clarified that “if a single aggravating factor has been established in a manner consistent with Blakely and Cunningham–by the jury’s verdict, the defendant’s admissions, or the fact of a prior conviction–the imposition by the trial court of the upper term does not violate the defendant’s Sixth Amendment right to a jury trial, regardless of whether the trial court considered other aggravating circumstances in deciding to impose the upper term. ‘[S]o 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.’ [Citation.]” (People v. Towne (2008) 44 Cal.4th 63, 75, citing Black II, supra, 41 Cal.4th at p. 813.)
Further, Black II held that the right to a jury trial does not apply to the determination that the defendant’s prior convictions are numerous or of increasing seriousness. (Black II, supra, 41 Cal.4th at pp. 818-820; People v. Towne, supra, 44 Cal.4th at p. 75.) More recently, our Supreme Court has clarified that the right to a jury trial likewise does not extend to the determination of the aggravating circumstances that the defendant was on probation or parole at the time of the offense, or has served a prior prison term. (People v. Towne, supra, at p. 79.)
In the wake of Cunningham, “[t]he California Legislature quickly responded” by amending the DSL to rectify the constitutional defects identified in Cunningham. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.) “Senate Bill No. 40 (2007–2008 Reg. Sess.) (Senate Bill 40) amended section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. [Citations.] Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: ‘When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....’ (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.)” (People v. Wilson, supra, at p. 992.)
(ii) Imposition of the upper term did not violate Yniguez’s Sixth Amendment or other constitutional rights.
Yniguez’s contention that imposition of the upper term was constitutionally impermissible lacks merit for several reasons. First, as the People point out, when Yniguez was sentenced, the amended version of the DSL was in effect. The court stated its reasons for imposition of the upper term, as described above. (See People v. Morton (2008) 159 Cal.App.4th 239, 250 [defendant’s criminal history may be established by the probation report].) Accordingly, “[t]he trial court’s sentencing of defendant in compliance with the requirements of amended section 1170, subdivision (b), did not violate defendant’s federal constitutional rights under Apprendi, Blakely, and Cunningham.” (People v. Wilson, supra, 164 Cal.App.4th at p. 992.) Yniguez’s argument that application of the amended DSL to him violates ex post facto principles is meritless. “To fall within the ex post facto prohibition, a law must be retrospective–that is, ‘it must apply to events occurring before its enactment’–and it ‘must disadvantage the offender affected by it,’ [citation], by altering the definition of criminal conduct or increasing the punishment for the crime, [citation].” (Lynce v. Mathis (1997) 519 U.S. 433, 441, italics in original; People v. Sandoval, supra, 41 Cal.4th at p. 853.) Yniguez committed the robbery on July 17, 2007, after the amendment’s March 30, 2007, effective date. Ex post facto principles are not implicated by application of the amended DSL to him.
Moreover, even if Cunningham applied to Yniguez’s sentence, no constitutional error is apparent. Imposition of the upper term was constitutionally permissible because of factors related to Yniguez’s recidivism. Yniguez’s probation report shows that, as a juvenile, he suffered sustained petitions for possession or sale of a switchblade knife in 1993 (§ 653k); possession for sale of a controlled substance in 1994 (Health & Saf. Code, § 11351); and possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and possession of a concealable firearm in 1997 (§ 12101, subd. (a)(1)). As an adult, Yniguez suffered convictions for driving without a license in 2000 and 2005 (Veh. Code, § 12500, subd. (a)); receiving stolen property (§ 496, subd. (a)) and taking or driving a vehicle without the owner’s consent in 2001 (Veh. Code, § 10851, subd. (a)); and false imprisonment in 2005 (§ 236). Additionally, Yniguez’s probation or parole was revoked at least four times.
As noted, imposition of an upper term sentence is permissible under Cunningham when based upon the aggravating circumstance of the defendant’s criminal history, including the circumstance that the convictions are numerous or of increasing seriousness. (People v. Towne, supra, 44 Cal.4th at p. 75; People v. Wilson (2008) 44 Cal.4th 758, 811-812; Black II, supra, 41 Cal.4th at pp. 819-820; Cal. Rules of Court, rule 4.421(b)(2).) Yniguez’s eight prior convictions and juvenile adjudications are clearly numerous. The probation report further substantiates that Yniguez was on parole at the time he committed the instant crime, and had served prior prison terms. These circumstances likewise fall within the recidivism exception to Cunningham’s jury trial requirement. (People v. Towne, supra, at p. 79.) Because Yniguez’s criminal history established aggravating circumstances that independently satisfied Sixth Amendment requirements and rendered him eligible for the upper term, he was not legally entitled to the middle term and his right to a jury trial was not violated. (Black II, supra, at p. 820; People v. Wilson, supra, at p. 812.)
Yniguez’s contrary arguments are not persuasive. His complaints that Black II, supra, 41 Cal.4th 799, and People v. Sandoval, supra, 41 Cal.4th 825, were wrongly decided, and his related argument that the prior conviction exception to the Cunningham rule is no longer viable are, as he recognizes, of no assistance to him before this court. We are bound to follow the precedents of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Likewise, his suggestion that the trial court improperly relied on a mixture of constitutionally permissible and impermissible aggravating factors is unpersuasive. Yniguez points out that the probation report listed six circumstances in aggravation: Yniguez induced others to participate in commission of the crimes or occupied a position of leadership or dominance in committing the crimes; the crimes were premeditated; Yniguez’s violent conduct indicates he is a serious danger to society; his adult convictions and/or juvenile adjudications are numerous or of increasing seriousness; he was on probation or parole when he committed the crimes; and his prior performance on probation or parole was unsatisfactory. Because the trial court referenced the probation report in support of its sentencing decision, Yniguez infers that the court improperly relied upon each of these factors as the basis for imposition of the upper term.
It is clear from the trial court’s comments that it imposed the high term based solely on Yniguez’s “record,” i.e., criminal history, as set forth in the probation report. Therefore, the record does not demonstrate that the court relied on any constitutionally impermissible factors. Further, Black II made abundantly clear that a trial court does not commit Blakely/Cunningham error by considering a variety of aggravating factors, as long as one constitutionally permissible aggravating factor exists. “Cunningham and its antecedents do not prohibit a judge from making the factual findings that lead to the selection of a particular sentence.” (Black II, supra, 41 Cal.4th at p. 814.) “[T]he presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The 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 factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.) Imposition of the upper term was therefore constitutionally permissible.
c. The trial court did not fail in its duty to state the reasons for imposition of the upper term sentence.
Yniguez further complains that the trial court failed to state the facts that formed the basis for its sentencing choice. He argues that, although the court indicated it was imposing the high term due to his criminal record as detailed in the probation report, the court “failed to set forth special facts in support of the reasons stated.” Assuming Yniguez intends to raise this contention as a separate claim of error, it lacks merit. A trial court is required to state the reasons for its sentencing choice on the record at the time of sentencing. (§ 1170, subd. (c); Cal. Rules of Court, rule 4.406.) Here, the trial court did so. It expressly stated the basis for its selection of the high term, i.e., Yniguez’s record. To the extent Yniguez desired a more detailed statement, it was incumbent upon him to object or seek clarification. He did not do so, and any challenge to the sufficiency of the court’s statements is waived. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511-1512.)
2. The trial court correctly instructed the jury with CALCRIM No. 300.
The trial court instructed the jury with the standard version of CALCRIM No. 300, which provided: “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” Yniguez contends this instruction impermissibly shifted the burden of proof to him, thereby reducing the People’s burden of proof. He posits that by instructing the jury that the defense need not produce “all” relevant evidence, the instruction implies that the defendant must produce “some” evidence to disprove the charged crimes. We are unconvinced.
First, Yniguez has forfeited his claim of error because he made no objection to the instruction below. (People v. Hillhouse (2002) 27 Cal.4th 469, 503 [a “party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial”]; People v. Mitchell (2008) 164 Cal.App.4th 442, 465; People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Because CALCRIM No. 300 is a correct statement of law, as we explain post, Yniguez’s substantial rights were not affected.
CALCRIM No. 300 has been repeatedly upheld against arguments similar to those made by Yniguez here. (See People v. Anderson, supra, 152 Cal.App.4th at pp. 937-938; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190; People v. Felix (2008) 160 Cal.App.4th 849, 858; People v. Golde (2008) 163 Cal.App.4th 101, 104, 117.) Anderson, for example, pointed out that People v. Simms (1970) 10 Cal.App.3d 299, approved CALJIC No. 2.11, an instruction analogous to CALCRIM No. 300. (People v. Anderson, supra, at p. 938; see also People v. Ibarra, supra, at pp. 1189-1190.) In Simms, as here, the appellant argued that the instruction could have led the jury to infer the burden of proof was to be shared by the People and the defendant. Simms disagreed, explaining that the instruction was a correct statement of law and its use was proper. (People v. Simms, supra, at p. 313.) CALCRIM No. 300 is the successor instruction to CALJIC No. 2.11 and contains similar language. Furthermore, the jury in the instant case was instructed regarding the presumption of innocence and the burden of proof. (CALCRIM No. 220.) The jury was also instructed with CALCRIM No. 355, which stated that a defendant may decline to testify and may rely on the state of the evidence. There is no reasonable likelihood the jury applied the instruction in an unconstitutional manner.
Because there was no instructional error, we do not reach the parties’ contentions regarding prejudice.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.