P. v. Yniguez

Filed 8/31/09 P. v. Yniguez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, William Sterling, Judge. 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.

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^[1]by imposing an upper term sentence, and (2) erred by instructing the jury with CALCRIM No. 300. Discerning no error, we affirm.

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 complexs 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 Hernandezs pockets and took his wallet, keys, cellular telephone, and approximately $80 in cash.

Yniguez then attempted to start another car in the garage with Hernandezs 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, Hernandezs 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. Yniguezs 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 Hernandezs wallet and telephone. Hernandezs car key and alarm remote, as well as $80, were found in Yniguezs 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 Venturas ignition and a brake locking mechanism suggested Yniguez had attempted to steal Venturas car.

Yniguez presented a mistaken identity defense.

2. Procedure.

Trial was by jury. Yniguez was convicted of second degree robbery (Pen. Code,  211)^[2]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 Peoples 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.

DISCUSSION

1. Imposition of an upper term sentence did not violate Yniguezs 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 Yniguezs prior criminal record. The court stated: Based on his record, which is extensiveIm not going to repeat it. Its in the probation report and documented in the probation reportI believe that high term is appropriate. I actually might have considered additional time, consecutive time for . . . count 2. . . . I think its more than justified by the defendants record. When responding to Yniguezs 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 didnt max you out . . . . Based on your record alone, I could easily justify all of it, and I think youre 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 courts 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 Californias determinate sentencing law (DSL) then in effect violated a defendants 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 Cunninghamby the jurys verdict, the defendants admissions, or the fact of a prior convictionthe imposition by the trial court of the upper term does not violate the defendants 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 defendants 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 (20072008 Reg. Sess.) (Senate Bill 40) amended section 1170 in response to Cunninghams 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 courts 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 Yniguezs Sixth Amendment or other constitutional rights.

Yniguezs 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 [defendants criminal history may be established by the probation report].) Accordingly, [t]he trial courts sentencing of defendant in compliance with the requirements of amended section 1170, subdivision (b), did not violate defendants federal constitutional rights under Apprendi, Blakely, and Cunningham. (People v. Wilson, supra, 164 Cal.App.4th at p. 992.) Yniguezs 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 retrospectivethat is, it must apply to events occurring before its enactmentand 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 amendments 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 Yniguezs sentence, no constitutional error is apparent. Imposition of the upper term was constitutionally permissible because of factors related to Yniguezs recidivism. Yniguezs 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 owners consent in 2001 (Veh. Code, 10851, subd. (a)); and false imprisonment in 2005 ( 236). Additionally, Yniguezs 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 defendants 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).) Yniguezs 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 Cunninghams jury trial requirement. (People v. Towne, supra, at p. 79.) Because Yniguezs 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.)

Yniguezs 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; Yniguezs 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 courts comments that it imposed the high term based solely on Yniguezs 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 courts 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., Yniguezs 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 courts 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 Peoples 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, Yniguezs 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.^[3]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1]Cunningham v. California(2007) 549 U.S. 270; Blakely v. Washington(2004) 542 U.S. 296.

^[2] All further undesignated statutory references are to the Penal Code.

^[3] Because there was no instructional error, we do not reach the parties contentions regarding prejudice.