Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County Super. Ct. No. RIF123115, James A. Edwards, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Karl Anthony Govan guilty of four counts of residential burglary (Pen. Code, § 459) (counts 1-4). The trial court sentenced Govan to a total term of six years in prison, including an upper term of six years on count 1.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Govan claims the People failed to present sufficient evidence to corroborate his accomplice's statement to the police that Govan aided in the commission of the burglaries charged in counts 1 through 3. In addition, Govan claims the trial court erred in refusing to instruct the jury on all counts as to the lesser related offense of receiving stolen property. Finally, Govan claims the trial court violated his federal constitutional rights under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) in imposing an upper term on count 1 on the basis of facts not found by the jury. We affirm the judgment.
In our original opinion in this case, we affirmed Govan's convictions, but vacated his sentence on the ground that the trial court's imposition of the upper term on count 1 violated his constitutional rights under Cunningham. The California Supreme Court granted the People's petition for review. The Supreme Court subsequently transferred the case back to this court with directions to vacate our earlier decision and reconsider the case in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On reconsideration, we conclude that under the principles announced by the Supreme Court in Black II, the trial court did not err in imposing Govan's upper term sentence.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The People's evidence
On April 18, 2005, at approximately 11:15 a.m., Miriam McAllister returned to her home in Murrieta. She discovered that her front door had been damaged. When she went to her bedroom, she saw that the drawers to her jewelry box were open and that some of the drawers had been removed. A $2 bill that had been in one of the drawers was missing. There was a pillowcase on the floor that contained the drawers from her jewelry box and the missing jewelry.
Also on April 18, at approximately 1:15 p.m., Elton Gaston, Jr., arrived at his home in Murrieta. Gaston discovered that two video game players were missing, along with two pillowcases.
That same day, Eddie Barba arrived at his house in Moreno Valley at approximately 1:30 p.m. He had been out of his home for only approximately 15 to 20 minutes. He discovered that several items were missing, including a coat, a jewelry box, and a video game player. Two pillowcases were also missing.
Don Mays lived across the street from Louise Black-Robinson's home on Dickinson Road in Moreno Valley. At approximately 1:00 p.m. on April 18, Mays saw a Black male in the driver's seat of a red car talking to a man later identified as David Smith. Smith was standing outside the car. Mays saw Smith approach the front of the Black-Robinson residence and ring the doorbell. Shortly thereafter, Mays saw Smith jump over a fence to the residence. Mays called the police at 1:23 p.m.
Riverside Sheriff's Deputy Mario Chavez responded to Mays's call. As he approached the Black-Robinson residence, he noticed that a door to the garage was open and that it appeared to have been kicked in. Chavez called for backup and waited outside the house.
Meanwhile, knowing that the burglary of his home had taken place only minutes earlier, Barba drove around the neighborhood in an attempt to find the perpetrators. Barba saw Deputy Chavez outside the Black-Robinson residence with his gun drawn. After speaking with Deputy Chavez briefly, Barba drove around to the back of the Black-Robinson home. Barba could see Smith inside the residence talking on a cellular telephone. Barba saw two Black males in a small red Dodge pull up next to the house. Govan was the passenger. Govan got out of the car and talked to Smith, who had come out of the house.
While waiting for more officers to arrive, Deputy Chavez saw a red Dodge parked near the house. Chavez saw a Black male in the driver's seat of the car, and Govan standing outside of the car, facing the car. Deputy Chavez observed Smith climbing the fence from the house. Govan placed a pillowcase that appeared to be half full of items in the car. Barba heard Govan yelling to Smith that a police officer was on the scene. As Govan opened the front passenger door of the car, Deputy Chavez yelled, "Freeze!" Govan got into the red Dodge and the car sped off. Smith attempted to flee on foot. Deputy Chavez chased Smith, caught him and arrested him. Officers found a $2 bill in Smith's possession.
Meanwhile, Michael Hoover, who had been driving by the scene, saw Govan get into the red Dodge. Hoover followed the red Dodge and telephoned 911. Barba also followed the red Dodge in his car. Both Barba and Hoover followed the car to a nearby church, where Govan got out of the red Dodge.
Riverside Sheriff's Deputy Oscar Garcia arrived at the church and arrested Govan. Police officers searched the red Dodge. Inside, police found items that had been stolen from the Gastons, the Barbas, and the Black-Robinsons. Approximately half of the stolen property was in the back seat on the passenger's side, and the rest was in the trunk.
In a statement he made to police on the day after his arrest, Smith said that Govan and another male had helped him burglarize three homes on April 18. Smith acknowledged that two of the homes were located in Murrieta and that police had interrupted a third burglary at a house in Moreno Valley. Smith told police that Govan was aware at the time that Smith was committing burglaries. Smith explained that the driver and Govan would drop Smith off at the house Smith intended to burglarize, and that when Smith had finished burglarizing the house, he would telephone Govan on a cellular telephone. The driver and Govan would then pick up Smith. Smith stated that he was planning to pay Govan $20 for assisting in the burglaries.
At Govan's trial, Smith testified that he committed the four burglaries. Smith testified that he had pled guilty to all four burglaries and that he had been sentenced to prison for the offenses. Smith claimed that he had planned to commit the burglaries solely with the assistance of a getaway driver, whom he knew only by the nickname "Tec-9." Smith testified that Tec-9 had picked him up in a red Dodge at 7:00 a.m. on the morning of April 18. Smith stated that he and Tec-9 burglarized three homes that day, without Govan. Smith said that the first time he saw Govan was at the burglary in Moreno Valley, which the police interrupted.
Smith testified that his original statement to police was inaccurate concerning Govan's presence and his assistance with the other burglaries. Smith claimed he was scared, nervous, and confused by the officers' questioning at the time he made the statements implicating Govan.
2. Defense evidence
Govan testified that on the day in question, he had taken the wrong bus while attempting to travel to a business to apply for a job. Govan got off the bus and was standing in front of a church when an acquaintance Govan knew only as "Ted," drove up in a red car and offered to give Govan a ride. Ted told Govan that he would have to pick up someone else along the way. Govan accepted the offer and got into the car. Govan did not know that any burglaries had been committed and he did not notice any pillowcases in the car.
Govan acknowledged that "Ted" and "Tec-9" were the same person. However, Govan stated that he knew the man only as "Ted."
Ted drove to a house where Govan saw Smith standing near a fence. Ted instructed Govan to help Smith. Govan got out of the car and approached Smith. Smith handed Govan a laptop case and one or two pillowcases, over the fence. Govan believed Smith was handing him Smith's property. As Govan was placing the items in the car, he heard someone yell, "Freeze." Ted sped off while Govan was only partially in the car.
As Ted drove away, Govan asked Ted what he and Smith had done. Ted did not tell Govan what they had done. Govan continually asked Ted to pull the car over. Ted eventually stopped the car in the parking lot of the church where Ted had initially picked up Govan. Ted walked away. Govan stayed on the church grounds and asked a student who was spraying off some tables if he needed help.
3. The People's rebuttal evidence
Deputy Mario Chavez testified that he interviewed Govan after his arrest on the day of the burglaries. Govan denied ever having been in the red Dodge that was used in the burglaries.
B. Procedural history
The People charged Govan with four counts of burglary (§ 459) for the burglaries of the McAllister residence (count 1), the Gaston residence (count 2), the Barba residence (count 3), and the Black-Robinson residence (count 4). A jury found Govan guilty on all counts. The trial court sentenced Govan to a total term of six years in prison.
III.
DISCUSSION
A. The People presented sufficient evidence to corroborate Smith's statement to the police implicating Govan in the burglaries charged in counts 1 through 3
Govan claims the People failed to present sufficient evidence to corroborate accomplice Smith's statement to the police implicating Govan in the commission of the burglaries charged in counts 1 through 3.
1. Standard of review
"The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. [Citation.]" (People v. McDermott (2002) 28 Cal.4th 946, 986.)
2. Governing law
Section 1111 provides:
"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
"An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
In People v. Narvaez (2002) 104 Cal.App.4th 1295 (Narvaez), this court considered the corroboration requirement contained in section 1111. In Narvaez, Christopher Mendoza, an accomplice of the defendants, Douglas Narvaez and Adrian Flores, testified at trial that he had served as the getaway driver during a robbery. (Narvaez, supra, 104 Cal.App.4th at pp. 1300-1301.) On appeal, the defendants claimed there was insufficient evidence to corroborate Mendoza's testimony. (Id. at p. 1303.)
The Narvaez court outlined the corroboration requirement of section 1111:
"Evidence that sufficiently corroborates an accomplice's testimony '"'must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime[,] but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.' [Citation.]" [Citation.]' [Citation.] The evidence necessary to corroborate accomplice testimony need only be slight, such that it would be entitled to little consideration standing alone. [Citation.] It is enough that the corroborative evidence tends to connect defendant with the crime in a way that may reasonably satisfy a jury that the accomplice is telling the truth. [Citation.] Corroborative evidence may be entirely circumstantial. [Citation.]" (Narvaez, supra, 104 Cal.App.4th at p. 1303.)
The Narvaez court stated, "It is established that '[t]he possession of recently stolen property is sufficient to support corroboration for an accomplice's testimony.' [Citations.]" (Narvaez, supra, 104 Cal.App.4th at p. 1304.) The court noted that the People presented evidence in that case that the defendants were in possession of jewelry that had been stolen in the robbery:
"In photographs taken the day after the robbery, Lopez, Douglas Narvaez's girlfriend, was wearing one of Kamil's stolen bracelets. When Douglas Narvaez and Lopez were arrested a week later, she had three pieces of Kamil's stolen jewelry in her possession. When Flores was arrested on April 30, he was wearing jewelry stolen during the robbery." (Id. at p. 1303.)
The Navarez court said it could "find no legal reason why the evidence is insufficient to corroborate Mendoza's testimony." (Narvaez, supra, 104 Cal.App.4th at p. 1304.)
3. There was sufficient evidence corroborating Smith's testimony
Govan was a passenger in the red Dodge that was used during the burglaries charged in counts 1 through 3. The red Dodge contained property that had been stolen during the Gatson, Barba, and Black-Robinson burglaries. Much of the stolen property was in pillowcases in the back seat of the car. Govan's presence in the car with the recently stolen property corroborated Smith's statements implicating Govan. (Narvaez, supra, 104 Cal.App.4th at p. 1304.)
In his interview with police, Smith did not admit having committed the Barba burglary. However, given Smith's statement to the police that Govan was already in the car when the driver picked up Smith on the day of the burglaries, Smith's statement implicated Govan in the Barba burglary. At trial, Smith responded affirmatively to the prosecutor's question, "Didn't you actually tell [the police] that Karl Govan was with you that entire day during all the burglaries?"
Govan's actions in alerting Smith to the presence of the police and fleeing in the red Dodge during the burglary that the police interrupted (count 4) also corroborates Smith's testimony. Evidence that Govan placed a pillowcase full of items taken during the interrupted burglary into the getaway car also corroborates Smith's testimony.
We conclude that the People presented sufficient evidence to corroborate Smith's statement to the police implicating Govan in the burglaries charged in counts 1 through 3.
B. The trial court did not err in refusing to instruct the jury regarding the lesser related offense of receiving stolen property
Govan claims the trial court erred in failing to instruct the jury regarding the lesser related offense of receiving stolen property and that this error violated his right to present a defense, under the United States Constitution. We apply the de novo standard of review to Govan's claim. (See People v. Posey (2004) 32 Cal.4th 193, 218 ["The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law"].)
In his opening brief, Govan relies on People v. Geiger (1984) 35 Cal.3d 510, 514 (Geiger), overruled by People v. Birks (1998) 19 Cal.4th 108, 139 (Birks). In Geiger, the California Supreme Court concluded that a defendant has a state constitutional right to a lesser related offense instruction under certain circumstances. (Geiger, supra, 35 Cal.4th at p. 514.) Govan concedes in his reply brief that Geiger was overruled by Birks. Govan maintains in his reply brief that the trial court violated his right to present a defense under the United States Constitution.
1. Factual and procedural background
Govan was charged in counts 1 through 4 with residential burglary. At trial, Govan testified that he was unaware that the burglaries charged in counts 1 through 3 had taken place. Govan further testified that he did not see any of the stolen property taken from these burglaries in the car in which he was riding as a passenger. With respect to the burglary charged in count 4, Govan testified that he did not know that Smith had just burglarized a house and was handing Govan stolen property. Govan testified that he thought Smith was handing him Smith's own property.
During a conference on jury instructions, defense counsel requested that the court instruct the jury on the lesser related offense of receiving stolen property. The People objected to the giving of this instruction. The trial court refused to give the instruction, noting that it was undisputed that receiving stolen property is not a lesser included offense of burglary. The court also stated that it would be improper to instruct the jury, over the prosecutor's objection, regarding the offense of receiving stolen property.
2. Governing law
In Hopkins v. Reeves (1998) 524 U.S. 88, 90-91 (Hopkins), the United States Supreme Court considered whether state trial courts are required to "instruct juries on offenses that are not lesser included offenses of the charged crime under state law." The Hopkins court concluded that, "such instructions are not constitutionally required." (Id. at p. 91.) The court reasoned:
"Almost all States . . . provide instructions only on those offenses that have been deemed to constitute lesser included offenses of the charged crime. [Citation and fn. omitted.] We have never suggested that the Constitution requires anything more. The Court of Appeals in this case, however, required in effect that States create lesser included offenses to all capital crimes, by requiring that an instruction be given on some other offense ─ what could be called a 'lesser related offense' ─ when no lesser included offense exists. Such a requirement is not only unprecedented, but also unworkable." (Id. at pp. 96-97.)
In People v. Valentine (2006) 143 Cal.App.4th 1383, 1386-1387 (Valentine), the court outlined the differences between a trial court's duties with respect to jury instructions on lesser included offenses and lesser related offenses under California law:
"'[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case.' [Citation.] The obligation to instruct includes giving instructions on lesser-included offenses when warranted by substantial evidence. [Citation.] However, a defendant has no right to instructions on lesser-related offenses even if he requests the instruction and it would have been supported by substantial evidence. [Citation.] California law does not permit a court to instruct on an uncharged lesser-related crime unless agreed to by the prosecution. [Citation.]"
3. Govan had no right to an instruction on the lesser related offense of receiving stolen property
Hopkins makes clear that a defendant has no federal constitutional right to a jury instruction on a lesser related offense. The Hopkins court phrased its holding in broad terms, stating that such an instruction is not "constitutionally required." (Hopkins, supra, 524 U.S. at p. 91.) Accordingly, the trial court did not violate Govan's federal constitutional rights by refusing to instruct the jury on the lesser related offense of receiving stolen property. (Ibid.; accord Valentine, supra, 143 Cal.App.4th at p. 1388 [rejecting argument that trial court's refusal to instruct on lesser related offense amounted to a failure to instruct on a defense theory because "the offense of receiving stolen property is not a defense to robbery; rather, it is a theory of criminal liability based on a different offense"].)
Govan argues that the Hopkins court did not address "head-on" whether a trial court's refusal to provide a lesser related offense instruction might violate a defendant's federal constitutional right to present a defense. Even assuming for the sake of argument that, notwithstanding Hopkins's broad holding, a defendant's federal constitutional right to present a defense could be implicated by a trial court's refusal to provide such an instruction in some circumstances, it is clear that Govan's right to present a defense was not violated in this case. Theelements of receiving stolen property are: (1) stolen property; (2) knowledge that the property was stolen; and (3) possession of the stolen property. (People v. Land (1994) 30 Cal.App.4th 220, 223.) Govan denied any knowledge of the burglaries or the existence of stolen property. Thus, Govan did not present any evidence that he was guilty of receiving stolen property. Accordingly, the trial court did not violate Govan's right to present a defense by refusing to instruct the jury on the lesser related offense of receiving stolen property.
C. Under Black II, the trial court did not err in sentencing Govan to an upper term on count 1
Govan claims the trial court committed reversible error in sentencing him to an upper term of six years on count 1 on the basis of facts not found by the jury.
1. Factual and procedural background
In November 2005, the probation officer filed a probation report with the court. In her report, the probation officer reviewed Govan's criminal record. The probation officer stated in the report that Govan had suffered a 1991 conviction for loitering around a school (former § 653g), a 1996 conviction for driving under the influence (Veh. Code, § 23152, subd. (a)), a 1997 conviction for carrying a loaded firearm (§ 12031, subd. (a)), and a 2003 conviction for unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)).
With respect to circumstances in aggravation and mitigation, the probation officer noted that the manner in which the instant crime was carried out indicated planning, sophistication, or professionalism (former Cal. Rules of Court, rule 4.421(a)), that Govan's prior convictions as an adult were numerous or of increasing seriousness (rule 4.421(b)(2)), that Govan was on probation at the time he committed the current offenses (rule 4.421(b)(4)), and that Govan's prior performance on probation had been unsatisfactory (rule 4.421(b)(5)). While the probation officer found no circumstances in mitigation, she wrote in her report, "in considering the factors of aggravation and mitigation, the middle term of incarceration could be justified."
All subsequent rule references are to the California Rules of Court that were in effect at the time of Govan's initial sentencing. On January 1, 2007, the Rules were renumbered.
The probation report indicated that codefendant Smith had pled guilty to four felony counts of first degree burglary (§ 459) and that he had been sentenced to six years in prison.
At the outset of Govan's sentencing hearing, the trial court commented that prior to trial, the court had indicated that it would be willing to sentence Govan to six years in prison if he were to plead guilty, in light of codefendant Smith's six-year sentence. The court indicated that it still considered six years an appropriate sentence, and that it was the court's intention to sentence Govan to an aggravated term of six years on one of the counts, and to order that the sentences on the other counts run concurrently with the principal term.
Defense counsel responded, "I don't know that you could give him six years, give him [the] upper term on anything . . . with Blakely [Blakely v. Washington (2004) 542 U.S. 296 (Blakely)]." The trial court responded that it believed the California Supreme Court had determined that Blakely did not apply to California's sentencing structure.
Defense counsel argued that imposing the midterm of four years on one count and ordering the other sentences to run concurrently, "would be plenty of punishment for his minor role in these crimes." The prosecutor requested that the court impose a sentence greater than the six-year sentence Smith had received. Among the factors the prosecutor argued supported a lengthier sentence for Govan were that he was nearly twice Smith's age, and that Smith had admitted responsibility at an early stage in the proceedings. The prosecutor requested that the court impose the upper term on the principal term, and order that the remainder of the counts run consecutively.
After hearing further argument and commenting on the arguments of defense counsel and the prosecutor, the trial court stated that it was the court's intention to impose a six-year term in prison. With respect to aggravating factors the court stated:
"The manner in which the crime was carried out indicates planning, sophistication, and professionalism. The defendant's prior adult convictions are of increasing seriousness. The defendant was on probation when the crimes were committed and his performance on probation was unsatisfactory."
The court also found that there were no factors in mitigation, and thus, that the factors in aggravation outweighed those in mitigation.
The trial court sentenced Govan to the upper term of six years on count 1, and to 16 months each on counts 2 through 4. The court ordered that the sentences on counts 2 through 4 be served concurrently with the sentence on count 1.
Govan claimed in his opening brief on appeal that the trial court violated his constitutional rights under Blakely in sentencing him to an upper term on the basis of facts not found by the jury. However, Govan conceded that his claim was at that time foreclosed by the California Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238 (Black) (Black I), certiorari granted, judgment vacated, and cause remanded sub nom. (Black v. California (2007) ____ U.S. ____ [127 S.Ct. 1210].) While Govan's appeal was pending, the United States Supreme Court issued its opinion in Cunningham, which abrogated Black I. In view of the Cunningham decision, we requested supplemental briefing regarding the effect of Cunningham on the sentence imposed in this case.
In our original opinion in this matter, we vacated Govan's sentence on the ground that the trial court's imposition of the upper term on count 1 violated his constitutional rights under Cunningham. We now reconsider Govan's claim in light of Black II and Sandoval. (See fn. 2, ante.)
2. Governing law
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court held that the imposition of an upper term sentence under California's former determinate sentencing law, based on neither a prior conviction nor facts found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United States Constitution:
The Legislature has amended DSL in response to Cunningham. (Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007.) All subsequent references to DSL are to that which was in effect prior to this amendment.
"California's determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term' sentence. The facts so found are neither inherent in the jury's verdict nor embraced by the defendant's plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does." (Cunningham, supra, 127 S.Ct. at p. 860.)
The Cunningham court reasoned:
"As this Court's decisions instruct, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) [Apprendi]; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) [Ring]; Blakely [, supra, ] 542 U.S. 296; United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) [Booker]. '[T]he relevant "statutory maximum," ' this Court has clarified, 'is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.' Blakely, 542 U.S., at 303-304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham, supra, 127 S.Ct. at p. 860.)
The Cunningham court reversed the defendant's upper term sentence because "the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial." (Cunningham, supra, 127 S.Ct. at p. 860.)
In Black II, the California Supreme Curt concluded that the upper term under California law is the "statutory maximum" in cases in which at least one aggravating factor has been established in a manner consistent with the requirements of the Sixth Amendment. Under these circumstances, a defendant is eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 812.) According to the Black II court, "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 fact finding 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 Black II court also concluded that the increasing seriousness of a defendant's prior convictions is a constitutionally permissible aggravating circumstance on which a trial court may rely in imposing an upper term. (Id. at pp. 819-820.)
3. Govan did not forfeit his claim
The People claim Govan forfeited his claim by failing to "object under Apprendi, Blakely, or the right to a jury trial." Defense counsel raised a Blakely objection at sentencing. In response, the trial court stated that Blakely did not apply to California's sentencing structure, implicitly referring to the California Supreme Court's decision in Black. Govan clearly did not forfeit his claim.
4. The trial court did not err in sentencing Govan to the upper term because the increasing seriousness of his convictions rendered him eligible for the upper term
In this case, among the aggravating circumstances on which the trial court relied in imposing the upper term on count 1 was that Govan's "adult convictions are of increasing seriousness." Under Black II, it was constitutionally permissible for the trial court to rely on this circumstance to impose the upper term. (Black II, supra, 41 Cal.4th at p. 819-820.)
Accordingly, we conclude the trial court did not err in imposing an upper term sentence on count 1.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.