P. v. Latre

Filed 6/17/08 P. v. Latre CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge.

Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Dawn Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Reynaldo Arnaldo Latre challenges his conviction and sentence for possessing a counterfeit $100 bill with intent to pass it or facilitate the passing of it. He argues that there was insufficient evidence to prove the offense. He further contends that the court gave erroneous jury instructions; wrongly refused to hear his personal statement and his attorneys argument at sentencing; and violated his Sixth Amendment rights as interpreted in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham) by imposing the upper term. We conclude there is no reversible error and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

Latre arrived at Table Mountain Casino with Melissa Felix, T.J., and two others on September 9, 2006. Felix and T.J. went to a card table. Felix placed two $100 bills on the table. The dealer used a special pen to screen for counterfeit bills. If a mark from the pen on a bill appeared black, the bill was fake, but if the ink turned yellow or tan, the bill was probably real. Felixs two bills passed the pen test; she received chips and played. Felix and T.J. moved to a second table. Each exchanged two $100 bills for chips; the bills passed the pen test. As Felix and T.J. played, Latre came to the table to watch and to advise them how to bet. Felix and T.J. moved to a third table. Each again tendered two $100 bills for chips. The bills again passed the pen test, and the dealer placed T.J.s bills in his drop box and gave her chips. As he was handling Felixs bills, however, he thought they did not feel like real money. Then he noticed that the two bills had the same serial number. A security officer took the two bills to the cashiers cage, where they were tested by machine and found to be counterfeit. The security officer led Felix and T.J. to the cage and called the tribal police.

Seeing Felix and T.J. led away, Latre asked the security officer what was happening. [W]hats going on with my girls? he asked. Latre referred to Felix and T.J. as his girls. T.J., who was 17 years old on the date of the incident, knew Latre as Rey Love. When told that the women were being questioned about counterfeit money, Latre took out some of his own money and said, hey, I got all this money, this money aint fake.

Latre, Felix, and T.J. waited together while casino employees investigated. The money from the drop boxes at each of the tables where Felix and T.J. had played was collected and examined. Money from the purse kept by an attendant who had given Felix change was also examined. Meanwhile, a tribal police officer who had arrived to help with the investigation asked Latre to show him the money in his wallet. Latre complied. He had 15 $100 bills, which were tested by machine. One was counterfeit. A total of 13 counterfeit $100 bills, including the one from Latres wallet, were identified and turned over to the sheriffs department.

A Secret Service agent later examined the 13 bills and confirmed that they were all counterfeit. Further, all 13 bills shared the same check letter, quadrant number, face plate number, and back plate number. This meant that all 13 were made from the same original.^[1]

The district attorney filed an information charging Latre and Felix as codefendants. Juvenile charges against T.J. were filed and then dismissed in exchange for her testimony against Latre and Felix. The information charged Latre with (1) passing or attempting to pass counterfeit currency (Pen. Code,  470, subd. (d)),^[2]and (2) possessing or receiving counterfeit currency with intent to pass it or facilitate its passage ( 475, subd. (a)). Felix was charged with four counts of passing or attempting to pass counterfeit currency ( 470, subd. (d)) and one count of possessing methamphetamine (Health & Saf. Code,  11377, subd. (a)). The information alleged that Latre had a prior strike (a robbery,  211) within the meaning of the three-strikes law and was eligible for an enhancement for serving a prior prison term. Felix was also charged as a second striker because of a prior residential burglary in the State of Washington.

The jury found Latre guilty of possessing a counterfeit bill with intent to pass it or facilitate its passage, but not guilty of passing counterfeit bills. He admitted the prior offenses. Felix was found guilty of three counts of passing counterfeit bills and not guilty of one count of that offense.

The court imposed a total sentence of seven years on Latre. This consisted of the three-year upper term doubled for the prior strike, plus a one-year enhancement for the prior prison term.

DISCUSSION

I. Sufficiency of the evidence

Latre argues that insufficient evidence was presented at trial to prove that he violated section 475, subdivision (a). Under that statute, one is guilty of forgery who possesses or receives, with the intent to pass or facilitate the passage of any forged, altered or counterfeit items, or completed items contained in subdivision (d) of section 470 with intent to defraud, knowing the same to be forged, altered, or counterfeit . Latre asserts that the prosecution did not prove he knew the bill in his wallet was counterfeit or that he had the specific intent to pass it or facilitate its passage. When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

The evidence that Latre knew he possessed a counterfeit bill and had the specific intent to pass it was sufficient. The evidence established that Latre came to a gambling casino with companions who proceeded to gamblewith Latres advice on bettingusing counterfeit $100 bills. Latres wallet contained a counterfeit $100 bill made from the same original as those used by his companions. A casino employee testified that he observed all the members of Latres group passing money among themselves 30 minutes to an hour before Latre, Felix, and T.J. were detained. T.J. testified that while the three of them were waiting together during the employees investigation, Latre told Felix she should take the rap either for it or for him. Further, Latre told inconsistent stories about where he got the $1,500 in his wallet. To a deputy sheriff who participated in the investigation at the casino, Latre said he worked in construction and got the money from the foreman at his job. He said he did not know the foremans name. An investigator for the district attorney testified that he also asked Latre where he got the money he had at the casino. Latre told him he had been saving the money over a period of time and he gets money through hustling, he braids hair, cuts hair, and also that various females give him money. T.J. testified that after the investigation was over and the three of them had been ordered off the casino property, Latre said that his homeboy had hooked him up with somesome hundred dollar bills, some money.

Based on all the evidence, the jury could reasonably infer, beyond a reasonable doubt, that Latre knew the bill in his wallet was counterfeit and that he possessed it for no reason but to use it. Possession of forged documents is evidence of knowledge of their spurious nature, and [t]he necessary fraudulent intent may be inferred from defendants unauthorized possession of them. (People v. Norwood (1972) 26 Cal.App.3d 148, 159.) The evidence here went well beyond possession. It strongly supported the inference that Latre came to the casino intending to be part of a group that would divide up a supply of counterfeit money, change it for chips, and gamble with it. The evidence also supported the conclusion that, after his companions were caught, Latre took steps to avoid detection of his own role, urging Felix to take the blame and lying about where he got his money, including his counterfeit money.

Latres contrary arguments amount only to alternative explanations of the evidence. He contends, for instance, that because the bill was of above-average quality and fooled two blackjack dealers, he could have mistaken it for real. This would account for his having one fake bill together with 14 real ones and voluntarily flashing them at the casino security guard and allowing the police officer to take them. He also suggests that his comment about Felix taking the rap could evince not a consciousness of guilt but a fear of wrongful accusation, and that his inconsistent stories about where he got the money might have referred only to the bills that were real, or might not have been inconsistent because the money could have come from more than one source. The mere existence of possible explanations for the evidence other than guilt does not show that the conviction was unsupported by substantial evidence.

The parties dispute whether we can rely on evidence that Latre actually tried to pass counterfeit bills that night at the casino and on one occasion succeeded. T.J. testified that she saw Latre unsuccessfully try to feed a $100 bill into a change machine. Robert Garcia, the casino employee whose purse contained counterfeit $100 bills, testified that he changed one or two $100 bills for Latre. Latre points out that this was the evidence supporting the charge of passing counterfeit money, a charge of which he was acquitted. Citing People v. Norwood, supra, 26 Cal.App.3d at page 159, the People answer that evidence supporting a charge of which a defendant is acquitted may be considered as support for other charges. Latre replies that, while this may be so, in this case the jury was responding to the especially weak character of the evidence when it found Latre not guilty of the charge. Garcias claim that Latre changed a bill or bills with him contradicted his repeated denial of the same at the preliminary hearing, and even at trial he said his level of certainty that it happened was only six on a scale of one to 10. Further, change machines often reject real bills, so Latre easily could have been trying to change a real one in the machine. Latre asserts that this was all the evidence there was to support the charge that he passed or attempted to pass counterfeit money; the jury rejected it, so even if it can be considered, it makes no sense to view it as materially helping to prove an intent to pass the counterfeit bill found in his possession.

We need not resolve this dispute. The evidence of intent to pass the counterfeit bill found in Latres possession was sufficient even without these additional items.

Finally, Latre argues that the jury could not properly rely on hearsay statements by Felix that allegedly incriminated Latre and that came into evidence via two prosecution witnesses. We will discuss this evidence under the heading of claimed instructional error in the next section of this opinion. For purposes of the substantial-evidence analysis, it suffices to say that the evidence was sufficient to prove the offense even without Felixs allegedly incriminating statements.

II. Jury instructions

A. Codefendants hearsay statements

Under the Aranda-Bruton rule, it is error in a joint criminal trial to admit a confession by a nontestifying codefendant that incriminates another codefendant, even if the jury is instructed not to consider the hearsay as evidence against that other codefendant. (People v. Aranda (1965) 63 Cal.2d 518, 528-530; Bruton v. United States (1968) 391 U.S. 123, 123-124, 126.) The rule is motivated by the concern that inculpation of a defendant by a nontestifying codefendants hearsay violates the defendants rights under the confrontation clause of the Sixth Amendment to confront and cross-examine his accusers. (Bruton v. United States, supra, at pp. 126, 136; People v. Fletcher (1996) 13 Cal.4th 451, 455, 465.) The rule applies even where the hearsay statement has been redacted or sanitized to replace the nondeclarant defendants name with a blank space. (Gray v. Maryland (1998) 523 U.S. 185, 188, 194-195.) On the other hand, the rule has been held not to require exclusion of evidence (or separate trials) where the codefendants confession was redacted to eliminate any indication that there was another perpetrator. Under those circumstances, the confession can be admitted in a joint trial with a limiting instruction. (Richardson v. Marsh (1987) 481 U.S. 200, 203, 211.)

Latre claims that several hearsay statements by Felix, which were introduced via the testimony of prosecution witnesses, incriminated him in violation of his confrontation clause rights. Reye Diaz, a special agent of the California Department of Justice, testified that T.J. told him that Felix told T.J. the bills were counterfeit. Micah Scott, another special agent of the Department of Justice, testified that Felix admitted she knew the bills were counterfeit and that using them was wrong. He also testified that Felix made reference to two other individuals who she also went to the casino with. Summarizing this evidence, Latre says in his brief: Thus, the jury had information, based on Felixs out of court statements, that: (1) she knew the $100 bills were counterfeit when she went to the casino; (2) as she entered the casino, she told one of her companions, T.J., that the $100 bills were counterfeit; and (3) she made reference to two other people who went to the casino with her. Other evidence showed that Latre was one of the people who came to the casino with Felix. His contention that this evidence incriminated him appears to be based on the notion that the jury could infer that everyone with Felix knew what she knew.

Under Richardson v. Marsh, supra, 481 U.S. 200, the evidence here was admissible with a limiting instruction. Like the defendant in Richardson, Latre was linked to the confession only by evidence properly admitted against him at trial. (Id. at p. 202.) True, this case differs from Richardson in that, here, the hearsay referred to companions, one of whom turned out to be Latre. In the form in which they were admitted, however, Felixs statements did not state or imply that those unnamed companions were coperpetrators. In fact, although the court and parties discussed outside the presence of the jury a hearsay statement by Felix to the effect that Latre gave her the counterfeit money and asked her to pass it, this statement was never introduced, not even with Latres name omitted. As presented to the jury, Felixs statements showed only that she was in the company of other people when she came to the casino to pass counterfeit money.

In fact, Latre does not argue that the statements were not admissible in the joint trial. It is not the admission of Felixs out-of-court statement that appellant challenges on appeal, he says. Instead, he contends that the court failed to give an adequate limiting instruction.

The jury received two relevant instructions. The first was Judicial Council of California, Criminal Jury Instructions (CALCRIM) No. 305:

Youve heard evidence that each of the defendants made a statement or statements out of court. You may consider that evidence only against the defendant alleged to have made the statement, not against the other defendant.

The second, given moments later (eight lines later in the reporters transcript), was a version of CALCRIM No. 358, which the court modified for use in a multiple-defendant trial:

You have heard evidence that the defendant has made oral or written statements before the trial. You must decide whether or not the defendants made any of these statement in whole or in part. If you decide that either or both defendants made such statements, consider the statements along with all the other evidence in reaching your verdict. Its up to you to decide how much importance to give to such statements.

You must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded.

Latre argues that the second instruction negated the first and improperly allowed the jury to consider Felixs hearsay statements not only against Felix but also against him.

Latre did not object to the instructions at trial, but an appellate court can address an incorrect instruction to which no objection was made at trial if the instruction impaired the defendants substantial rights. ( 1259.) Further, the court must give some instructions sua sponte:

[E]ven in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial. The most rational interpretation of the phrase general principles of law governing the case would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court. [Citations.] (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)

The court has no duty to give an instruction if it is repetitious of another instruction the court gives. (People v. Turner (1994) 8 Cal.4th 137, 203, overruled on other grounds by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Jurors are generally presumed to follow instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) We review the correctness of jury instructions de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)

Applying these standards, we conclude that the instructions were adequate. The court instructed the jury not to use one defendants out-of-court statements against the other defendant. There is no reason to think this instruction was erased from the jurors minds when, almost immediately, the court followed up by telling the jury to decide whether the out-of-court statements were really made, and, if they were made, to consider them and decide how much weight to give them. When viewed as a whole, the instructions reveal no error on this point.

Latre also argues that the combination of the introduction of Felixs out of court statements and the modified CALCRIM 358 violated the confrontation clause as interpreted in Crawford v. Washington (2004) 541 U.S. 36, 53-54, 59, 68-69, which held that testimonial hearsay incriminating a defendant is inadmissible unless the declarant is unavailable to testify at trial and the defendant had a pretrial opportunity to cross-examine the declarant. There was no confrontation clause violation for the reasons we have already stated: The statements did not incriminate Latre, and the jury instructions adequately directed the jurors not to use them against him.

B. Mistake-of-fact defense

Latre argues that the court erred when it did not give, on its own motion, a jury instruction on the defense of mistake of fact. He claims the evidence warranted an instruction that the jury should acquit him if he mistakenly believed all the money in his possession was genuine. The CALCRIM pattern instruction on mistake of fact reads as follows:

The defendant is not guilty of ___________ <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.

If the defendants conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit _______ <insert crime[s]>.

If you find that the defendant believed that _________ <insert alleged mistaken facts> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for _________ <insert crime[s]>.

If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for ________ <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes). (CALCRIM No. 3406.)

Latre did not request this instruction, but a trial court must instruct on a defense sua sponte if it appears that the defendant is relying on the defense or if substantial evidence supports the defense and it does not conflict with the defendants theory of the case. (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.)

Latre contends that several facts presented to the jury constituted substantial evidence in support of this defense. For instance, he voluntarily showed the money to a guard and claimed it was all genuine, and later consented to the examination of the money by casino employees. He would not have done these things if he had known one of the bills was counterfeit. Also, there was expert testimony that the counterfeit bill he possessed was of above-average quality; it could easily have fooled a nonexpert like Latre. Latre was cooperative, made no attempt to flee, and did not try to conceal his identity.

We need not decide whether the evidence warranted the instruction. Any error in failing to give it was harmless beyond a reasonable doubt because the instructions given on the elements of the crime gave the jury the same information that the instruction on the defense would have given. The court instructed the jury on the elements of possession of counterfeit currency pursuant to CALCRIM No. 1930:

The defendant, Reynaldo Latre, is charged in Count Two with possessing or receiving counterfeit U.S. currency.

To prove that the defendant is guilty of this crime, the People must prove that:

One, the defendant possessed or received counterfeit U.S. currency;

Two, the defendant knew the currency was counterfeit;

And threeor excuse me. Three, the defendant intended to pass or use, or aid the passage or use of the document as genuine;

And when the defendant possessed or received the document, he intended to defraud.

Someone intends to defraud if he or she intends to deceive another person either to cause a loss of money or goods, or services, or something else of value, or to cause damage to, a legal, financial, or property right.

The court also instructed the jury in accordance with CALCRIM No. 251:

Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent.

In order to be guilty of the crimes of passing or attempting to pass counterfeit U.S. currency in violation of Penal Code Section 470(d) or the crime of possessing or receiving counterfeit U.S. currency with the intent to pass the same, a person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the intent required are explained in the instruction for each of these crimes.

When, having heard these instructions, the jury found Latre guilty of possessing a counterfeit bill with intent to pass it, it necessarily found that he did not mistakenly believe the bill was genuine, for it had to find that he knew it was counterfeit and that he intended to defraud. When a jury resolves a factual question against a defendant under one instruction, the failure to put the same question to the jury in a different instruction is not reversible error. (People v. Wright (2006) 40 Cal.4th 81, 99; People v. Allison (1989) 48 Cal.3d 879, 897.)

In People v. Wright, supra, 40 Cal.4th 81, our Supreme Court applied this rule to a situation like the present one: The omission of a defense instruction was harmless because the jury necessarily rejected the factual predicate of the defense when it found that the prosecution proved the elements of an offense. Wright was convicted of possession of marijuana for sale and transportation of marijuana. (Id. at p. 86.) He argued on appeal that the jury should have been instructed on the Compassionate Use Act as a defense to the transportation charge. (People v. Wright, supra, at p. 98.) The instruction would have stated that the defendant was not guilty if the marijuana in his possession was for his personal medical use. (Id. at p. 99.) The Supreme Court held that omission of the instruction was not reversible error because the jury necessarily found that the marijuana was not for the defendants personal use when it found him guilty of possession for sale. (Ibid.) Here, similarly, the mistake-of-fact instruction would only have asked the jury to make again a finding it had already made under the instructions on the elements of the offense. Consequently, the error of omitting the instruction, if any, was harmless under the standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Wright, supra, 40 Cal.4th at p. 98.) Tellingly, in his reply brief, Latre does not even attempt to show that the instructions on the elements of the offense did not require the jury to make the same finding that the instruction of mistake of fact would have required.

III. Sentencing

A. Opportunity for defense counsel to address court

At the sentencing hearing, the court asked whether there was any cause why judgment should not be pronounced. Defense counsel said no. The court asked if the parties had any corrections or additions to make to the probation report. Defense counsel requested two corrections. Next, the court took up Latres request that the court disregard his prior strike offense for purposes of sentencing. The court asked if counsel wished to be heard. Defense counsel submitted the issue without additional argument, but asked the court to reduce the count of conviction to a misdemeanor if the request was denied. The court proceeded to reject both requests, first discussing the facts it considered relevant. These included the fact that, although Latre was convicted only of possessing a single bill, it was one of several bills found that night that came from the same source. The following exchange ensued:

THE COURT: But as the evidence bore out at trial, these serial numbers all came from the same producer, for lack of a better word, with those bills, and the Court finds that he does not

MS. BONEY [defense counsel]: Your Honor, may I comment on that, serial numbers?

THE COURT: I meanyou know, I gave you your opportunity, Im going to move forward.

MS. BONEY: Okay.

The court completed its findings and made its rulings on the request to disregard a prior strike and the request to reduce the offense to a misdemeanor. Then it asked defense counsel if she wished to be heard as to sentencing. Counsel submitted and the court imposed sentence.

Latre argues that the court erred when it declined to hear counsels comment about the serial numbers. He says the courts action violated his constitutional rights to due process of law and assistance of counsel.

This argument has no merit. The court gave counsel an opportunity to be heard before it began making its findings and issuing its ruling. Having done this, it had no obligation to allow counsel to interrupt. To the contrary, it had discretion to control the timing and length of counsels argument. (People v. Cross (1963) 213 Cal.App.2d 678, 682.) It did not abuse this discretion by denying counsels request to reopen argument after it began issuing its ruling.

Even if it was error not to hear what counsel had to say about the serial numbers, Latre has not shown how he could have been prejudiced. Although his brief contains several assertions about serial numbers, it does not explain how any of these could have helped him. Further, regardless of what counsel might have said about the serial numbers, the evidence established that all the bills were made from the same original because all shared the same check letter, quadrant number, face plate number, and back plate number. Latre has not shown reversible error under any standard.

B. Allocution

After the court imposed sentence, the following exchange took place:

THE DEFENDANT: Can I address the Court?

THE COURT: No, you cant, sir. WereI completed my sentencing. I must give you your appeal rights.

The court went on to explain the right to appeal and ended the hearing. Latre argues that the courts action violated a right to allocution protected by section 1200^[3]and the state and federal Constitutions.

The question of whether there is any general statutory or constitutional right to allocution prior to sentencing in a noncapital case is pending in the California Supreme Court. (People v. Evans (2006) 135 Cal.App.4th 1178, review granted Apr. 26, 2006, S141357.) There is a split in the existing California cases. (In re Shannon B. (1994) 22 Cal.App.4th 1235, 1238, 1246 [ 1200 forms basis of right to make personal statement and present evidence in mitigation]; People v. Cross, supra, 213 Cal.App.2d at pp. 681-682 [defendant had no right to make statement personally at sentencing hearing after his counsel argued for leniency and stated there was no legal cause why sentence should not be pronounced].) The Ninth Circuit has taken the position that there is such a right. (Boardman v. Estelle (9th Cir. 1992) 957 F.2d 1523, 1529-1530 [defendants right to allocution before sentencing protected as matter of federal due process].)

We need not take any position on whether a defendant has a right to make a personal statement prior to sentencing because Latre did not request leave to make a statement until after he was sentenced. Before sentencing, the court asked whether there was any legal cause why judgment should not be pronounced. Defense counsel said no. Latre and his counsel did not ask for permission for Latre to make a statement at any time until after the court had imposed sentence. Therefore, any right to make a statement Latre might have had was waived. (See In re Shannon B., supra, 22 Cal.App.4th at p. 1246 [Whether to permit a defendant to speak personally before pronouncement of judgment is not within the discretion of the court (italics added)]; Boardman v. Estelle, supra, 957 F.2d at p. 1530 [Our holding is limited to circumstances in which a defendant  makes a request that he be permitted to speak to the trial court before sentencing (italics added)].) There is no authority for the view that the right to allocution, if there is such a right, is among those that can be waived only by the defendant personally, not by counsel.

C. Blakely/Cunningham

When it chose to impose the upper term, the trial court relied on aggravating factors that were not admitted by Latre or proved to the jury beyond a reasonable doubt. Latre argues that this violated his Sixth Amendment right to trial by jury as interpreted in Blakely and Cunningham. Our Supreme Courts application of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II) is dispositive of this issue and requires affirmance of the sentence.

In Blakely, the United States Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendants Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with deliberate cruelty and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: 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.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the states sentencing law did not allow the sentence to exceed 53 months without judicial factfinding. Our precedents make clear that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. 303.) The court continued:

In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, [citation], and the judge exceeds his proper authority. (Blakely, supra, 542 U.S. at pp. 303-304.)

On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. 270 [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law as it stood then^[4]was erroneous, therefore, unless it was supported by prior convictions, facts found by the jury, or facts admitted by the defendant.

Subsequently, the California Supreme Court issued its decision in Black II. It held that the upper term imposed in that case was not erroneous under Cunningham because it was authorized by the defendants prior offenses and the jurys finding that the defendant committed the offense by means of force and fear. (Black II, supra, 41 Cal.4th at pp. 816-817, 818.) Whether the trial judge would have imposed the upper term based on one of these factors alone was irrelevant; the question was only whether it could have done so under the sentencing law. It could: Californias determinate sentencing law allows the trial court to impose the upper term based on a single aggravating factor. Each of these two factors authorized the upper term independently under California law and each was independently established by means consistent with the Sixth Amendment as interpreted in Blakely and Cunningham. The presence of either one alone would have been sufficient to render the upper term constitutional. (Black II, supra, at pp. 813, 814-815, 820.)

Black II makes clear that the trial court need not have relied expressly on one of the factors approved by Blakely and Cunningham so long as one of those factors was present in the record and the court was aware of it. The trial court in Black did not assert at sentencing that it was using the defendants prior convictions as an aggravating factor in support of the upper term. Instead, it said it was imposing the upper term because of the nature, seriousness, and circumstances of the crime. (Black II, supra, 41 Cal.4th at p. 816.) It also stated that it considered other aggravating circumstances set out in the district attorneys sentencing brief. These included the defendants criminal history. The probation report included the defendants criminal history also. This was sufficient even though the trial court did not mention defendants criminal history explicitly. (Id. at p. 818.)

Further, where a factor properly established under the Sixth Amendment is present, the courts reliance on other factors that would not satisfy the Sixth Amendment on their own does not undermine the sentence:

[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. (Black II, supra, 41 Cal.4th at p. 813.)

In this case, after finding Latre ineligible for probation, the court stated its reasons for selecting the upper term:

The Court will impose the aggravated term of three years state prison, having weighed and considered those factors in mitigation versus those in aggravation, finding that the defendants ongoing criminal history involving theft and violence since his robbery conviction back in November of 2000 in case ending 470-8, his subsequent convictions in case 939-6, and case ending 751-9, outweigh those other factors in mitigation.

The probation report, which the judge read and considered, listed six prior adult convictions, including the 2000 robbery that constituted a strike. The other five offenses were misdemeanors: driving without a license in 1997 (Veh. Code,  12500, subd. (a)); petty theft in 1998 ( 488); spousal battery in 1999 ( 243, subd. (e)(1)); and willful infliction of corporal injury on a spouse or cohabitant in 2000 and again in 2002 ( 273.5, subd. (a)).

In light of all this, we conclude that there was no constitutional error in the imposition of the upper term in the present case. The court expressly relied on Latres prior convictions as an adult. His record of prior convictions was more than sufficient under Black II to support the imposition of the upper term without any additional findings by the jury. Latre argues that the courts reference to his ongoing criminal history involving theft and violence constituted reliance on a factor beyond the mere fact of his prior convictions, but, even if true, this would not be error. Black II compels the conclusion that, where prior convictions authorize the upper term, the sentence is not vitiated by the courts reliance on additional factors as well.

Latre also argues that Black II was decided incorrectly. He recognizes, however, that we are bound to follow Black II and that this argument serves only to preserve his claims for later review.

IV. Cumulative error

Latre argues that, even if we determine the courts errors not to be prejudicial separately, they are prejudicial cumulatively. We have rejected Latres claims of error on all but one issuethe omission of a mistake-of-fact instructionabout which we conclude that, if there was error, it was harmless. Therefore, we are not faced with multiple errors whose cumulative effect could be prejudicial.

DISPOSITION

The judgment is affirmed.

_____________________

Wiseman, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Hill, J.

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^[1]The 13 bills also shared a total of four serial numbers, but this did not mean there were four originals. The sameness of the other identifying numbers meant there was a single original, according to the Secret Service agent. She said that counterfeiters sometimes change serial numbers on bills made from a single original to increase the appearance of genuineness.

^[2]Subsequent statutory references are to the Penal Code unless noted otherwise.

^[3]Section 1200 provides: When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.

^[4]It has since been amended in response to Cunningham. (Stats. 2007, ch. 3 [Sen. Bill No. 40]; see Black II, supra, 41 Cal.4th at p. 808, fn. 2.)