Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA053104, Andrew C. Kauffman, Judge.
C. Elliot Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, Lawrence M. Daniels and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Bill Bochicchio appeals from the judgment entered following his conviction by jury of first degree residential burglary (Pen. Code, § 459) with court findings that he suffered a prior felony conviction (§ 667, subd. (d)), and a prior serious felony conviction (§ 667, subd. (a)), following the denial of a suppression motion (§ 1538.5). The court reinstated his previous sentence of 17 years in prison for the present offense, plus 8 months on an unrelated case. Appellant claims the trial court erroneously denied the suppression motion and committed sentencing error. We affirm the judgment.
Unless otherwise indicated, statutory references are to the Penal Code.
This is appellant’s second appeal. His first resulted in our nonpublished opinion in People v. Bochicchio (Feb. 1, 2005, B171068) (Bochicchio I), discussed post. In this second appeal, we filed, in April 2006, a nonpublished opinion concerning which our Supreme Court later denied appellant’s petition for review. However, the United States Supreme Court later vacated the judgment and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. We have revised part 3 of this opinion accordingly and, except for that revision and nonsubstantive revisions, this opinion is otherwise the same as the previous one.
FACTUAL SUMMARY
A detailed recitation of the facts of the present offense is not necessary to resolve this appeal. Suffice it to say that the evidence, the sufficiency of which is undisputed, established that on May 29, 2002, appellant committed first degree residential burglary in Hermosa Beach.
A fuller recitation of the facts of the present offense may be found in Bochicchio I, supra, B171068.
CONTENTIONS
Appellant contends (1) the trial court erroneously denied his suppression motion because officers lacked reasonable suspicion to support his detention for burglary, (2) the trial court erred by failing to rule on whether his sentences in a prior case and in the present case should be served concurrently or consecutively, and (3) the court violated appellant’s right to a jury trial and right to due process when it imposed the upper term for the present offense.
DISCUSSION
1. The Trial Court Properly Denied Appellant’s Suppression Motion.
a. Pertinent Facts.
(1) People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Leyba (1981) 29 Cal.3d 591, 596-597), the evidence established as follows. About a week to two weeks before May 29, 2002, nine or ten daylight residential burglaries had occurred in the south end of Hermosa Beach. During the afternoon of May 29, 2002, Hermosa Beach Police Officer Brian Smyth was part of a surveillance team. Smyth was driving around the south end of Hermosa Beach in an unmarked pickup truck. Smyth was looking for suspicious activity and suspicious persons. Smyth was maintaining radio contact with other members of the surveillance team.
Smyth had been driving around for about 45 minutes to an hour when, about 3:00 p.m., appellant drew Smyth’s attention. Appellant had a large duffel bag slung over his shoulder. The duffel bag appeared to be loaded with items. Appellant was carrying in his left hand a “rather large awkward looking . . . hard plastic case.” The case, which was black, later turned out to be an emergency roadside kit. Appellant was holding the bicycle’s handlebars with his right hand.
Smyth testified appellant looked awkward, and it looked like appellant could not ride very long carrying those items. As soon as appellant made his left turn, Smyth knew the street appellant was turning on was a one-way street. Appellant was going the wrong way on a one-way street. Appellant’s riding the bicycle, his location, the items he was carrying, and the manner in which he was carrying them attracted Smyth’s attention as being consistent with what he was looking for in terms of the daytime residential burglaries. Smyth decided to stop and contact appellant as soon as Smyth saw him go southbound on Palm in order to conduct a burglary investigation.
Smyth further testified he previously had investigated over 10 burglaries in which the burglars carried stolen items in a duffel bag. Smyth testified that, in his experience, burglars would frequently steal items from a house, put them in the victim’s duffel bag or pillow case, and flee.
Shortly after Smyth saw appellant go southbound on Palm, Smyth radioed for a marked patrol unit to conduct a traffic stop. Smyth continued to observe appellant. Appellant proceeded about two blocks on Palm, then turned left and proceeded eastbound on First Court. Appellant was not traveling in one direction but was returning to the direction from which he originally had come and appeared to be wandering.
Smyth testified appellant was first traveling west and downhill, then south “against the one-way traffic sign, northbound traffic only[,]” then east and uphill. It did not seem to Smyth to be the easiest way to travel south.
Appellant rode by a three-story house under construction on First Court. As appellant rode by, he looked at the location and looked up. After appellant passed the construction site, he turned around, rode back, and stopped near it.
When Smyth saw appellant return to the construction site, Smyth’s initial thought was that the black case contained drills or construction equipment. There had been many burglaries from construction sites, and such tools were taken and sold to people at other construction sites.
Appellant parked his bicycle and put the duffel bag on top of the bicycle’s handlebars. He took the black case, walked upstairs in the house, and left Smyth’s view. Probably 10 or 15 seconds later, Smyth saw appellant on the top floor. Smyth assumed there were construction workers up there but initially he did not see any.
Smyth testified he radioed for a patrol car to meet him at the location so “we [could] contact” appellant. Hermosa Beach Police Officer Jaime Ramirez, a uniformed motorcycle officer, later arrived at the location and contacted Smyth while appellant was still on the third floor of the house.
When Ramirez arrived, Smyth told Ramirez that Smyth was going to “call [appellant] to come down and talk to us.” Smyth testified, “Just at that point [appellant] looks over the railing down at us, and I waved to him, ‘Can you come down here and talk to me?’”
Smyth testified he did not contact appellant until Ramirez arrived at the construction site. The following later occurred, “Q And once Officer Ramirez arrived, both you and Officer Ramirez ordered Mr. Bochicchio to come down from that third level toward where the two of you were; is that correct? [¶] A My exact words were ‘Why don’t you come down and talk to me, partner?’” Smyth testified he did not know if appellant took his words as an order or a request, but appellant complied. When appellant came downstairs, he was no longer carrying the black case.
When appellant arrived at street level, Smyth asked for appellant’s name and identification. Smyth testified he did not believe appellant had identification, but appellant gave his name and birth date. The prosecutor asked Smyth, “Did you ask him to sit down, detain him at that point[,]” and Smyth replied yes. After appellant provided his name and birth date, Smyth had him sit across the street. Appellant complied with Smyth’s order.
Hermosa Beach Police Sergeant Raul Saldana later arrived. Smyth learned by radio that appellant was on probation for burglary. Appellant confirmed the information. Smyth asked appellant whether he had search conditions and appellant replied that he did. Smyth asked if appellant would consent to a search of the duffel bag and his person, and appellant consented. Smyth did not look in the duffel bag until he asked permission. Ramirez retrieved the black case from the top floor of the house. Smyth did not issue appellant a citation for a vehicle violation.
According to Smyth, the burglary in the present case was reported to the Hermosa Beach Police Department sometime after 8:00 p.m. on May 29, 2002. At the time Smyth contacted appellant at the construction site, Smyth had no information about the burglary in the present case. No suspect description had been provided in connection with the other burglaries for which Smyth had been conducting surveillance.
Ramirez testified that about 3:00 p.m. on May 29, 2002, he was dispatched to assist Smyth on First Court. Ramirez believed both he and Smyth “called [appellant] to come down” to the location of Ramirez and Smyth.
Appellant came down and joined Ramirez, but brought nothing with him. Ramirez went to the third floor of the house and found the black case. Ramirez spoke with each of the four construction workers at the location. They denied knowing appellant and stated he had tried to sell the black case to them.
Saldana conducted a patdown search of appellant. Saldana discovered a screwdriver in appellant’s left rear pocket and a wad of jewelry in his front right pants pocket. Saldana was present when appellant was questioned about being on probation and having search conditions. Appellant acknowledged he was on probation for residential burglary with search conditions. Saldana testified appellant “agree[d] to the search of himself and the belongings that he had[.]”
(2) Defense Evidence.
In defense, appellant, who had suffered a prior conviction for attempted residential burglary and who was on probation for that offense on May 29, 2002, testified as follows. About 2:45 p.m. on the above date, appellant arrived at the construction site. He stopped there to see friends who worked there. Appellant had purchased the emergency roadside kit about two hours before he had arrived at the site, and he brought it upstairs to show it to the workers and sell it. After appellant arrived, officers “called [appellant] down from upstairs, told [appellant] to come downstairs.” Appellant went downstairs. However, he left the emergency roadside kit on the third floor because the officer asked him to come down and the kit was about 10 to 15 feet from appellant at the time. Appellant did not give police consent to search the duffel bag or appellant’s person.
(3) Stipulations.
The parties stipulated there was no arrest warrant or search warrant in this case. The court noted it had heard, at two prior trials in this case, the testimony of the burglary victims in this case concerning their ownership of the property in question. The parties stipulated the court could consider that testimony.
(4) The Court’s Ruling on the Motion.
On March 10, 2003, appellant filed a section 1538.5 suppression motion in which he sought suppression of “all evidence and observations seized without a search or arrest warrant[.]” The written motion urged appellant’s detention was illegal because Smyth lacked a reasonable suspicion that appellant was involved in criminal activity. The written motion also urged that appellant’s illegal detention mandated suppression of the evidence seized and appellant’s statements to police.
At appellant’s request, we have taken judicial notice of the record on appeal in Bochicchio I.
After remand from this court, the trial court, on June 15, 2005, conducted a hearing on the suppression motion. The parties’ witnesses testified as previously indicated in parts 1.a. (1) and (2), ante. During argument, the prosecutor urged that various facts supported the detention of appellant, including the fact that Smyth saw appellant riding his bicycle the wrong way on a one-way street. The prosecutor argued a detention on that ground was lawful even if the detention were pretextual.
In pertinent part, the trial court stated it was not satisfied that appellant had established a “privacy interest[,]” but the court would assume appellant had done so. The court later stated, “having heard the testimony from Officer Smyth, I’m satisfied from all of the evidence that there was sufficient cause to detain defendant.” The court acknowledged the issue of “if there was a detention at such time as [appellant] was called down from the top floor,” but the court stated it was satisfied the officers had a sufficient basis to lawfully detain appellant at that time. The court indicated it was not satisfied that the recovery of the black case resulted from the detention; instead, the court concluded appellant had abandoned the black case. The court also concluded the “search” was lawful as incident to appellant’s arrest, which was supported by probable cause to arrest based on Smyth’s observations and the information Ramirez had received from the construction workers. The court denied appellant’s suppression motion.
b. Analysis.
(1) Smyth Lawfully Detained Appellant.
Appellant contends the trial court erroneously denied his suppression motion. He claims he was unlawfully detained when he was “called down by Smyth and Ramirez.” For reasons discussed below, we conclude the trial court properly denied appellant’s suppression motion.
A person is “seized” within the meaning of the Fourth Amendment only when the person is physically restrained or voluntarily submits to a peace officer’s show of authority. (People v. Johnson (1991) 231 Cal.App.3d 1, 10-11; People v. Arangure (1991) 230 Cal.App.3d 1302, 1307.) The requisite show of authority exists when a reasonable person would believe that the person was not free to leave. (People v. Johnson, supra, at pp. 10-11; People v. Arangure, supra, at pp. 1305-1308.)
A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts which, considered in light of the totality of the circumstances, provide an objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) Moreover, if an objectively reasonable basis for a detention exists, the issue of whether an officer actually relies on that basis to detain, and the issue of the officer’s subjective intent or motivation in detaining, are irrelevant. (Cf. People v. Valencia (1993) 20 Cal.App.4th 906, 915-916; People v. Miranda (1993) 17 Cal.App.4th 917, 923-926; People v. Uribe (1993) 12 Cal.App.4th 1432, 1435-1438; People v. Lloyd (1992) 4 Cal.App.4th 724, 732-734; see Whren v. United States (1996) 517 U.S. 806, 809, 812-813 [135 L.Ed.2d 89, 95, 97-98].)
We assume without deciding that appellant was detained when he began to come downstairs from the third floor. However, before May 29, 2002, there had been nine or ten daytime residential burglaries in the south end of Hermosa Beach. Smyth had investigated over 10 burglaries in which the burglars carried stolen items in a duffel bag.
As a result of the series of daytime burglaries in the south end of Hermosa Beach, Smyth, on May 29, 2002, was part of a surveillance team and was looking for suspicious activities and persons. Smyth saw appellant riding a bicycle in the daytime, steering with one hand, and carrying a large duffel bag loaded with items. Appellant was also carrying an awkward looking black case. The whole situation looked awkward to Smyth. It appeared to Smyth that appellant could not have continued riding very long with the duffel bag and black case; this supported an inference appellant had only recently obtained them.
Moreover, appellant turned onto Palm and, despite a one-way traffic sign, rode the wrong way on Palm, a one-way street, in violation of the Vehicle Code. (Veh. Code, §§ 21200, 21657.) The Vehicle Code violation, by itself, provided Smyth an objectively reasonable basis to detain appellant.
Vehicle Code section 21657, states: “The authorities in charge of any highway may designate any highway, roadway, part of a roadway, or specific lanes upon which vehicular traffic shall proceed in one direction at all or such times as shall be indicated by official traffic control devices. When a roadway has been so designated, a vehicle shall be driven only in the direction designated at all or such times as shall be indicated by traffic control devices.” An “official traffic control device” includes a sign. (Veh. Code, § 440.) Vehicle Code section 21200, subdivision (a), states, in relevant part, “Every person riding a bicycle upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division, . . . except those provisions which by their very nature can have no application.” Vehicle Code sections 21200 and 21657 are each part of division 11 of the Vehicle Code, which pertains to “Rules of the Road.”
Appellant took a circuitous and unnecessarily difficult route, and appeared to be wandering, before he reached the house under construction. However, once he rode by the house, he looked at it and looked up. Appellant passed the house, then returned to it. Smyth then thought the black case contained construction tools. He knew that tools were frequently stolen during construction site burglaries and sold at other construction sites. These facts supported an inference that, when riding around, appellant was looking for an opportunity to sell the items he was carrying. Appellant later came downstairs without the black case, permitting the inference he left it due to consciousness of guilt. Based on all of the above facts, including appellant’s Vehicle Code violation, we conclude Smyth lawfully detained appellant. (Cf. People v. Souza, supra, 9 Cal.4th at p. 231; People v. Valencia, supra, 20 Cal.App.4th at pp. 915-916; People v. Johnson, supra, 231 Cal.App.3d at pp. 10-11.)
(2) None of Appellant’s Arguments Demonstrate the Trial Court Erred by Denying the Suppression Motion.
Appellant makes a number of arguments in support of his claim that the trial court erred by denying his suppression motion. We address them below.
Appellant asserts the People did not claim below that (1) Smyth stopped appellant because he was riding the wrong way on a one-way street or (2) Smyth lawfully could have detained appellant for that reason. He also asserts the trial court did not consider those issues. The record reflects otherwise. As mentioned, appellant’s traffic violation provided Smyth an objectively reasonable basis to detain appellant; therefore, whether Smyth subjectively relied on that basis to detain appellant was irrelevant. The People argued during the hearing on the suppression motion that Smyth had reason to stop appellant due to the traffic violation, this provided another reason for the officers to do what they did, and even if Smyth stopped appellant for that reason and the stop was pretextual, investigation of the traffic violation would have been proper. We presume the trial court considered these issues since, after hearing argument, the court stated, inter alia, “having heard the testimony from Officer Smyth, I’m satisfied from all of the evidence that there was sufficient cause to detain defendant.”
Appellant claims he had a privacy interest in the duffel bag, black case, and his pockets, he did not abandon the black case, and any such abandonment resulted from an unlawful detention. There is no need to decide whether appellant had privacy interests in those areas or whether he abandoned the black case. Appellant acknowledges the parties disputed below whether he consented to the search of his person and possessions. However, appellant does not expressly dispute here that he lawfully so consented except to the extent he claims “[a]ppellant’s consent was a direct result of his unlawful detention.” We previously have concluded appellant’s detention was lawful. Therefore, even if appellant had privacy interests in the duffel bag, black case, and his pockets, any search of them was lawfully based on his consent to search.
In Bochicchio I (see fn. 2, ante), we held that, inter alia, the trial court reversibly erred by denying appellant’s suppression motion on the ground he lacked a privacy interest by reason of a search condition imposed upon appellant as a term of previously granted probation. We noted the trial court denied the motion without the benefit of a later California Supreme Court decision that compelled the conclusion that the denial was error. We remanded the matter to permit the trial court to conduct a new suppression hearing, but nothing in Bochicchio I prevented the trial court, following remand, from determining whether appellant lacked a privacy interest in an area(s) for a reason(s) other than the fact of the search condition.
Moreover, since we have concluded Smyth lawfully detained appellant, any abandonment of the black case did not result from an unlawful detention. Further, even if police searched the black case, appellant concedes no evidence was presented at the June 15, 2005 suppression hearing that police seized anything from the black case.
Appellant denies the “search” can be justified as a search incident to a lawful arrest, arguing that if Smyth “violated the Fourth Amendment in unlawfully detaining appellant prior to the search,” evidence obtained as a result of that search was subject to suppression “regardless of the legality of the search itself.” Again, we previously concluded appellant’s detention was lawful. The court properly denied the suppression motion and none of appellant’s arguments compel a contrary conclusion.
2. The Trial Court Did Not Err by Reinstating Appellant’s Sentence, Including Consecutive Sentences.
a. Pertinent Facts.
The clerk’s transcript reflects that appellant was convicted of attempted burglary in case No. SA044189, and placed on probation. The clerk’s transcript also reflects that, on April 3, 2003, following a probation revocation hearing in case No. SA044189, the court found appellant in violation of probation and sentenced him to prison for two years.
In the present case, on April 9, 2003, the court declared a mistrial as to the charge that appellant committed burglary (count 1) and, on the People’s motion, dismissed a charge of receiving stolen property (count 2). Following a retrial in the present case on the burglary charge, a jury convicted appellant.
At initial sentencing in the present case on October 2, 2003, the court noted that in case No. SA044189, the court had found appellant in violation of probation and had “committed him to the state prison.” The court asked whether, as to the present case, the court was “required to impose a consecutive sentence in light of the Three-Strikes law[.]” Appellant indicated no; the prosecutor indicated yes. The court later stated, “[Defense counsel], I’m looking at section 1170.12, subdivision (a), subdivision (8)” [sic] discussed post. Appellant replied, “I’ll submit on that, . . .”
The court sentenced appellant to prison in the present case for 17 years, consisting of 12 years for the burglary (the 6-year upper term, doubled pursuant to the Three Strikes law), plus 5 years for the section 667, subdivision (a), enhancement. The court, stating it was doing so “[a]s required by law,” modified the previously imposed two-year sentence in case No. SA044189, by staying all but eight months of that sentence. The court then stated, “The court directs the sentence in . . . case [No. SA044189] to be served consecutive to the sentence imposed in [the present case], and that is based on the court’s view that is required by law.”
Appellant later appealed and, in Bochicchio I, contended, inter alia, that the trial court erroneously failed to exercise its discretion to impose concurrent sentences for case No. SA044189 and the present case. Respondent, relying on People v. Rosbury (1997) 15 Cal.4th 206 (Rosbury), discussed post, conceded it appeared appellant was correct. In Bochicchio I, relying on respondent’s concession, we concluded the trial court erroneously believed that imposition of consecutive sentences was mandatory under the Three Strikes law, and we remanded for resentencing.
Following remand, the court, on June 15, 2005, indicated an issue was “the court’s previous determination that the sentence on the probation violation case should run consecutive with the sentence imposed in this case, . . .”
The trial court noted the following. After the trial court found appellant in violation of probation (in case No. SA044189), the court sentenced him to prison in that case. Later, appellant was convicted in the present case and the court sentenced him to prison for a total of 17 years. The court then resentenced appellant to a “consecutive term on the probation violation, inasmuch as in the court’s view the defendant was then serving a prison sentence in the prior case.”
The court then stated, “That seems to have not been addressed by the Court of Appeal. The Court of Appeal was of the view that this court had mistakenly believed that those were two current convictions, but they were not two current convictions. [¶] Defendant was already serving a state prison sentence at the time he was convicted and sentenced in the present case.”
The prosecutor indicated he had no objection to concurrent sentencing if it would resolve problems, however, the prosecutor also commented “there is certainly authority and reason” for consecutive sentencing. Appellant did not address the issue. The court, without objection, later stated, “The judgment and sentence pronounced on October the 2nd, 2003, is reinstated. [¶] Defendant is sentenced to state prison for a total term of 17 years, that being the high term, doubled, as required by law, plus five additional and consecutive years for the prior conviction found to be true.”
b. Analysis.
Appellant contends the trial court at the resentencing hearing erroneously failed to rule on whether the sentences in case No. SA044189 and the present case were to run concurrently or consecutively. Respondent again concedes the trial court appears to have erred. For reasons discussed below, we reject respondent’s concession and conclude the trial court did not err.
In Rosbury, our Supreme Court considered section 667, subdivision (c)(6), (7), and (8). In that case, the defendant was convicted of a new offense constituting a strike under the Three Strikes law, he had suffered a prior strike, and the prior strike was alleged with the new offense. At the time of sentencing for the new offense, he was on probation for the first strike. The court sentenced the defendant for the new offense pursuant to the Three Strikes law (§ 667, subd. (e)(1)). The court subsequently revoked probation for the first strike, imposed sentence in that case, and imposed concurrent sentences for the first strike and new offense. The appellate court held that the trial court erred because section 667, subdivision (c)(7) of the Three Strikes law mandated consecutive sentencing. (Rosbury, supra, 15 Cal.4th at pp. 208-209.)
Section 667, subdivision (c)(6), (7), and (8), states, in relevant part: “(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: [¶] . . . [¶] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e). [¶] (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law. [¶] (8) Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.”
Our Supreme Court disagreed with the appellate court, holding the prior strike was not a “current” conviction within the meaning of section 667, subdivision (c)(7) because the defendant had not suffered the prior strike in the present proceeding, that is, the proceeding in which the defendant had been convicted for the new offense; therefore, there was only one “current” conviction--that for the new offense--and section 667, subdivision (c)(7) did not apply to mandate consecutive sentencing. (Rosbury, supra, 15 Cal.4th at pp. 209-210.)
Conceding section 667, subdivision (c)(7) was inapplicable, the Attorney General argued in Rosbury that subdivision (c)(8) mandated consecutive sentencing. Our Supreme Court disagreed, concluding that since, when the court imposed sentence for the new offense pursuant to section 667, subdivision (e) of the Three Strikes law, the defendant was, in the prior case, merely on probation and not yet sentenced, the defendant was not “already serving” a “sentence” in the prior case within the meaning of subdivision (c)(8); therefore, that subdivision did not apply to mandate consecutive sentencing. (Rosbury, supra, 15 Cal.4th at p. 211.)
In Bochicchio I, respondent, in good faith, relied on Rosbury to concede the trial court in the present case could impose concurrent sentences following remand. However, respondent in Bochicchio I failed to note that, unlike the defendant in Rosbury, appellant was, without dispute, already serving time in prison in his prior case (case No. SA044189) when the trial court, at sentencing on October 2, 2003, imposed consecutive sentences in that case and the present case. That is, on October 2, 2003, the trial court effectively relied on section 667, subdivision (c)(8) to impose consecutive sentences; this is why, on that date, the trial court told appellant’s counsel, “. . . I’m looking at section 1170.12, subdivision (a)[(8),]” the initiative counterpart to section 667, subdivision (c)(8).
In Bochicchio I, relying on respondent’s concession and citation to Rosbury, we held the trial court in the present case erroneously believed at initial sentencing that imposition of consecutive sentences was mandatory. However, because, in Bochicchio I, respondent (1) referred to appellant’s prior case merely as a “probation violation” (italics added) matter, (2) failed to expressly refer to the fact that appellant already had been serving a sentence in the prior case when the court initially sentenced him for the new offense, and (3) relied on Rosbury, a case in which the defendant had been on probation in the prior case when the court sentenced the defendant for the new offense, we failed to discuss the significance of the trial court’s comment at initial sentencing that the court was “looking at” section 1170.12, subdivision (a)(8), and we failed to conclude that consecutive sentences were mandatory under section 667, subdivision (c)(8). However, since appellant had been serving a sentence for his prior case, our failure to conclude that consecutive sentences were mandatory under section 667, subdivision (c)(8) was error. Moreover, that error caused us to wrongly imply that the trial court erroneously had believed at initial sentencing that consecutive sentencing was mandatory under section 667, subdivision (c)(6) and (7). In fact, the trial court correctly had relied at initial sentencing on subdivision (c)(8). In short, our holding in Bochicchio I as to this issue was, regrettably, erroneous.
Section 669 states, in relevant part, “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second . . . judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.” (Italics added.)
At initial sentencing on October 2, 2003, the court pronounced judgment in the present case and, as part of that judgment, directed (§ 669) that appellant serve consecutive terms for case No. SA044189 and the present case. At the resentencing hearing on June 15, 2005, the court stated: “The judgment . . . pronounced on October the 2nd, 2003, is reinstated.” (Italics added.) By so stating, the court not only reinstated the judgment but its included and proper direction that appellant serve consecutive terms. Therefore, on June 15, 2005, the trial court properly sentenced appellant to consecutive terms pursuant to section 667, subdivision (c)(8).
Appellant, failing to address the trial court’s June 15, 2005 comments that appellant already had been serving time in prison in the prior case, claims concurrent sentencing is mandatory. He cites that portion of section 669 that reads, “Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run . . . concurrently.” However, as discussed, the trial court did determine (as mandated by section 667, subdivision (c)(8)) that the terms would run consecutively when, on June 15, 2005, the court reinstated the October 2, 2003 judgment, which included a direction of such consecutive sentencing. Respondent, continuing to rely on Rosbury, again concedes the trial court has discretion to impose concurrent sentences. We decline to accept respondent’s concession.
Appellant does not argue that (1) we concluded in Bochicchio I that section 667, subdivision (c)(8) was inapplicable and (2) under the “law of the case” doctrine, that conclusion binds us today. We note, however, that if, at the resentencing hearing, the trial court had failed to impose consecutive sentences pursuant to that subdivision, the result arguably would have been an unauthorized sentence. (See People v. Scott (1994) 9 Cal.4th 331, 354.) We also note the “law of the case” doctrine does not apply when it would produce unjust results (see People v. Shuey (1975) 13 Cal.3d 835, 846), and an unauthorized sentence is arguably such a result. However, since appellant does not argue the issue, there is no need for us to decide it.
3. Imposition of the Upper Term for the Present Offense Did Not Violate Appellant’s Right to a Jury Trial or Right to Due Process.
Appellant contends imposition of the upper term violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process. We disagree.
a. Pertinent Facts.
The probation report prepared for an October 2003 hearing reflects as follows. In January 2002, appellant was convicted of attempted burglary in case No. SA044189. In that matter, the court placed appellant on formal probation for three years.
As mentioned, in October 2003, the court initially sentenced appellant to prison for 17 years in the present case, including 12 years for first degree residential burglary, representing the upper term of 6 years for that offense, doubled pursuant to the Three Strikes law. The court, which read the probation report, stated at initial sentencing, “the court is selecting the high term . . . because you were on probation for the offense of attempted burglary in the first degree at the time that you committed this crime.” Also as mentioned, in June 2005, the court reinstated that sentence.
b. Analysis.
“In Cunningham [v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856]], the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), concluded that California’s [determinate sentence law] does not comply with a defendant’s right to a jury trial. ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, 549 U.S. at pp. ___-___ [127 S.Ct. at pp. 863-864].)” (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).)
The Sandoval court later observed, “Apprendi stated, ‘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.’ (Apprendi, supra, 530 U.S. at p. 490, italics added.)” (Sandoval, supra, 41 Cal.4th at p. 835.)
In Blakely, the high court concluded 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.’ ([Blakely, supra, 542 U.S.] at p. 303.)” (Sandoval, supra, 41 Cal.4th p. 836.)
In People v. Black (2007) 41 Cal.4th 799 (Black), our Supreme Court stated: “[W]e agree with the Attorney General’s contention that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial.” (Id. at p. 812.) The court also stated, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
Black also stated, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black, supra, 41 Cal.4th at p. 816.)
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (Sandoval, supra, 41 Cal.4that pp. 836-837.)
In the present case, the trial court imposed the upper term based on the fact that appellant was on probation at the time he committed the present offenses. Moreover, appellant admitted at trial that he was on probation when the present offenses occurred. The court therefore properly imposed the upper term based on appellant’s recidivism and admission. Each of these rendered appellant eligible for imposition of the upper term. (Black, supra, 41 Cal.4th at pp. 812-816.) No Cunningham error occurred.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.