Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA062738. Michelle R. Rosenblatt, Judge. Affirmed.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, P. J.
Defendant and appellant Michael Anthony Graham appeals from a judgment of conviction following a jury trial. He challenges the judgment in three respects. First, he contends that the trial court prejudicially erred in admitting a victim’s preliminary hearing testimony after concluding she was unavailable, arguing that the prosecution failed to establish it exercised due diligence in attempting to secure her attendance at trial. Second, he contends that the trial court prejudicially erred in admitting expert testimony concerning the effects of domestic violence. Third, he contends the trial court erred in imposing the upper term on the basis of aggravating factors neither found by the jury nor admitted by him. We find no merit to these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Counts 1 and 2.
On July 6, 2004, at approximately 11:00 a.m., Jeffrey Cooper was waiting for a bus at an intersection in Altadena. Two individuals drove up in a green Navigator; Cooper recognized appellant as the driver. Appellant said to Cooper: “It’s not over” and “beating up wasn’t enough.” As appellant drove away, Cooper crossed the street to avoid further confrontation. Appellant then made a U-turn and pulled up by Cooper again. The passenger jumped out of the car and Cooper told him that he did not want to fight. The passenger responded: “I don’t want to fight you either. Just give me your stuff.”
Cooper ran away and got into the backseat of a truck stopped at a stop sign. The Navigator’s passenger opened the truck door and asked again for Cooper’s “stuff.” Cooper gave him his CD player, a baseball hat and $2 from his pocket. The passenger ran back to the Navigator and got inside, and appellant drove away. The driver of the truck took Cooper to the sheriff’s station.
Three days later, Cooper was waiting for a bus at a different intersection when appellant drove up in a Lexus with two passengers inside. Appellant called out Cooper’s name and asked if he had made a police report about the earlier incident. When Cooper said that he had not, appellant told him he was lying, asked if he knew what happened to snitches, and then said that beating him up was not enough and that “snitches die.” Cooper was scared. He told his parents what had happened and they took him to the police station.
Approximately two years earlier, Cooper became upset with management at the shoe store where he was employed. He arranged with two people to come steal shoes from the store when it closed. Instead, five people—including appellant—showed up and took the shoes. The police stopped their car minutes after the theft. Though Cooper did not know appellant’s name, he told the police everything that had happened and identified the two people he had originally asked to be involved. Cooper believed appellant’s “snitches” comment referred to this incident.
Counts 4 and 5.
Appellant was the father of Kimberly Lee’s infant daughter and the twins she was carrying. On September 21, 2004, appellant came to Kimberly’s residence at 1842 Lincoln in Pasadena, but Kimberly would not let him in. Kimberly called her mother, Mary Lee and asked Mary to pick up her daughter so she could go to work. Kimberly sounded afraid.
Finding Kimberly to be an unavailable witness, the trial court permitted her preliminary hearing testimony to be read to the jury.
For clarity, we refer to Kimberly Lee and Mary Lee by their first names.
When Mary arrived at Kimberly’s residence, appellant was walking away from the residence. Appellant approached a man in a car who said, “Let it go man. Let it go,” and appellant responded that he was not going to let it go. Appellant approached Mary at the door to the residence and asked her who Kimberly had in the house; Mary responded that she did not know. Appellant was upset and said that he was going to leave and come back with a gun to kill Kimberly. Appellant then drove off with the man he spoke to earlier.
Mary then went inside Kimberly’s house and told Kimberly what appellant had said. Kimberly was on the phone, having already called 911. While Kimberly was on the phone, both she and Mary heard Kimberly’s car being started and the horn honk. Kimberly knew that appellant had a key to her car. Mary and Kimberly both spoke with the 911 operator. Thereafter, the police came and took a report. When Kimberly was certain that appellant had gone, Mary left with Kimberly’s daughter. After Mary left, Kimberly received a telephone call from appellant, who said “‘I’m going to get you.’” This was not the first time that appellant had threatened her.
A short time later, while Kimberly was preparing to leave for work, her close friend Burgundy Bridges sat by the living room window to make sure that appellant was not still outside. Suddenly, Bridges’ face changed; she became hysterical and appeared shocked, amazed and scared. Bridges said something like “He’s back and he has a gun,” and Kimberly called 911 again.
According to Dr. Nancy Kaser-Boyd, a clinical and forensic psychologist specializing in battered women’s syndrome, domestic violence encompasses not only physical violence but also psychological abuse ranging from name-calling to threats. Domestic violence victims do not contact the police unless they are quite frightened and the situation is truly an emergency for them. When they do call, they generally give a spontaneous, often detailed statement about what occurred. On occasion, the victim may recant her statement due to fear of retaliation or because of a temporary reconciliation. Similarly, a victim who hides to avoid testifying in court would generally do so out of fear of potential retaliation.
On October 25, 2004, Pasadena Police Officer Anthony Karg contacted Kimberly at her residence. She was crying and said she feared for her life. She gave Officer Karg an address and a description of two vehicles. When Officer Karg and other officers were eventually able to enter the residence at that address, they found appellant in a crawl space in a bedroom closet and arrested him.
The defense evidence consisted of a notarized letter from Kimberly, dated May 4, 2005, which stated in part: “I was not afraid of him on the day in question. My life was not in any danger, nor did I fear him in any way. Not then or now.”
An amended information charged appellant with second degree robbery in violation of Penal Code section 211 (count 1), criminal threats in violation of section 422 (counts 2 & 4 through 6) and attempting to dissuade a witness in violation of section 136.1 (count 3). The information also alleged that appellant had served two prior prison terms (§ 667.5, subd. (b)) and had suffered a prior serious felony conviction (§§ 667, subds. (a)(1) & (b)–(i), 1170.12, subds. (a)–(d)). As to counts 1 and 3, the information alleged that offenses were committed for the benefit of, at the direction of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(B)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
A jury trial commenced on December 13, 2005. After the prosecution and the defense rested, the trial court granted appellant’s section 1118.1 motion for acquittal as to counts 3 and 6, and granted the prosecution’s motion to dismiss the gang allegations. The jury convicted appellant on all remaining counts.
At sentencing, the prosecution elected to not proceed with the prior serious felony allegation. Appellant waived his right to a jury trial on the prior conviction allegations, and the trial court found true that appellant had suffered two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to state prison for a total term of eight years and four months, comprised of the upper term of five years on count 1, eight months each on counts 2 and 4, and two years for the section 667.5, subdivision (b) enhancements. The trial court stated that the upper term on count 1 was warranted because of appellant’s criminal history. Pursuant to section 654, the trial court stayed imposition of the two-year sentence on count 5. Appellant was also ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 parole restitution fine (§ 1202.45).
This appeal followed.
DISCUSSION
I. The Trial Court Properly Admitted the Preliminary Hearing Testimony of an Unavailable Witness.
At the beginning of trial, the trial court ruled that Kimberly’s preliminary hearing testimony was admissible after determining that Kimberly was unavailable and that the prosecution had exercised due diligence in attempting to locate her. We independently review a trial court’s determination of due diligence. (People v. Smith (2003) 30 Cal.4th 581, 610; People v. Cromer (2001) 24 Cal.4th 889, 901 (Cromer).) Finding no error, we affirm the trial court’s ruling.
A. Facts Relating to Kimberly’s Unavailability.
On December 12, 2005, the date the case was initially called for trial, the trial court held a hearing to determine whether Kimberly was unavailable for trial and whether the prosecution had exercised due diligence in trying to locate her. Mary testified that she had not seen Kimberly in over one week. Kimberly and her children had been living with Mary for about one year, but Kimberly had packed her van and left without telling Mary where she was going and without contacting her after she left.
In August 2005, Kimberly’s failure to appear earlier had required the prosecution to dismiss the original information and later refile the case.
Michael Howard, an investigator with the district attorney’s office, testified that he made several unsuccessful attempts to serve Kimberly during the summer. When he renewed his efforts on October 18, 2005, he went to a residence at 477 Archwood and spoke with Kimberly’s father, who said he did not know where Kimberly was. One week later, Howard returned to the Archwood residence and a day care employee said that Kimberly no longer lived there. One week after that, on November 1, 2005, Howard again returned to the Archwood residence but no one was there. As he was leaving, he spoke with a mail carrier who said it had been four or five months since he had delivered mail to Kimberly at that address.
Mary operated a home day care center out of the Archwood residence.
The same day, Howard went to Kimberly’s previous residence at 1842 Lincoln in Pasadena. After receiving no response at any of the four apartments at that location, he called the realtor number listed on a sign at the front of the complex. The realtor told him that although she had no forwarding address for Kimberly, she had seen her working at Sears just a few days earlier. The next day, Howard spoke to a manager at Sears, who asked to see a subpoena before providing any information. The following day, November 3, 2005, Howard returned with a subpoena requiring Kimberly to appear in court on November 9, 2005, and the manager said Kimberly would be at the store the next day. Kimberly called in sick the next day, but Howard returned to Sears on November 7, 2005 and served Kimberly with the subpoena. Kimberly told him “I thought this was all over. I don’t want to go.”
Kimberly complied with the subpoena and appeared in court on November 9, 2005. She also appeared on November 30, 2005, the date she had been ordered to return, but then failed to appear on the next return date of December 7, 2005, and the trial court issued a warrant for her arrest. The day Kimberly did not appear, Howard called Sears and learned from a manager that Kimberly no longer worked there. The morning of trial, December 12, 2005, Howard’s supervisor instructed Howard to begin a due diligence check, which included his conducting a computer Department of Motor Vehicles check, reverse directory check, telephone information and case files checks through the district attorney’s office, Los Angeles County Sheriff’s Department booking check and checks of the coroner’s office and County U.S.C. hospital records. Between December 7 and December 12, Howard did not personally go to Sears or Kimberly’s parents’ house, nor did he conduct an additional postal check to ascertain a forwarding address. Howard was unable to locate Kimberly through his efforts.
Following counsels’ arguments at the hearing, the trial court declined to find Kimberly unavailable, stating: “I’m just not comfortable saying that she is unavailable when no postal check, and no last check on the residence has been done, since the issuance of the warrant.” In response to these comments, Howard returned to court the following day and testified that he went to the Archwood residence the previous afternoon. The same day care employee he met earlier told him that Kimberly no longer lived there and that she had not seen her for four or five weeks. Kimberly’s father also said that Kimberly had moved out, but indicated that he would contact the court about Kimberly after he saw the bench warrant; he also asked several specific questions about where and when the warrant required Kimberly to appear. When Howard went back to the Archwood residence the next morning, he spoke with Mary, who told him “I haven’t had any contact with [Kimberly] since last week. I don’t know how to get a hold of her. She no longer has a cell phone.” Howard also testified that he faxed a request for updated postal information, but would not receive a response for four days.
Following additional argument from counsel, the trial court made a finding of unavailability and concluded that the prosecution exercised due diligence in attempting to locate Kimberly. In reaching this conclusion, the trial court expressly considered Kimberly’s behavior to the extent that she had previously come to court when called; the scope of the investigator’s search; the extent of search efforts given the lack of a forwarding address; and the investigator’s follow-up on additional information. Under the totality of the circumstances, it determined that there was nothing more the investigator could have done beyond repeating his previous efforts. As a result of this determination, the trial court further ruled that Kimberly’s preliminary hearing testimony was admissible pursuant to Evidence Code section 1291.
B. The Prosecution Exercised Due Diligence in Attempting to Locate Kimberly.
“The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. [Citations.]” (Cromer, supra, 24 Cal.4th at p. 892.) But the right to confrontation is not absolute. (Ibid.) Testimony given in a preliminary hearing against the defendant may be used at trial if the witness is unavailable at trial. (Evid. Code, § 1291.) Evidence Code section 240 defines certain occasions when a witness is deemed unavailable, such as when the declarant is “[a]bsent from the hearing and the court is unable to compel his or her attendance by its process,” or when the declarant is “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subds. (a)(4) & (5); see also People v. Wilson (2005) 36 Cal.4th 309, 340; People v. Sanders (1995) 11 Cal.4th 475, 522–523.) The proponent of the evidence has the burden of establishing unavailability by competent evidence. (People v. Cummings (1993) 4 Cal.4th 1233, 1296; People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
In pertinent part, Evidence Code section 1291, subdivision (a) provides: “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”
To determine whether a party has exercised reasonable or due diligence to locate and to produce a witness at trial, courts consider the totality of the efforts undertaken, including the character of the proponent’s efforts; whether the search was timely begun; the importance of the witness’s testimony; whether leads were competently explored; whether the proponent reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena the witness when he or she was available; and whether the witness would have been produced if reasonable diligence had been exercised. (Cromer, supra, 24 Cal.4th at p. 904; People v. Sanders, supra, 11 Cal.4th at p. 523.) The fact that the proponent of the evidence could have taken some further or additional step does not render his or her efforts unreasonable; reasonable diligence is all that is required. (People v. Wilson, supra, 36 Cal.4th at p. 342; People v. Diaz, supra, 95 Cal.App.4th at p. 706.)
We conclude that the prosecution here met its burden to establish it exercised reasonable diligence in attempting to locate Kimberly. Although Kimberly had initially failed to appear in August 2005, Howard was able to locate her at her employment after visiting her parents, her previous residence and her employer on multiple occasions. Indeed, Howard’s pursuing the lead provided by the realtor sign in front of Kimberly’s former residence was what led him to her employer. Thereafter, Kimberly complied with the subpoena and had appeared in court twice in November 2004, giving the prosecution little reason to think she would not appear at the next scheduled court date. When Kimberly failed to appear on December 7, 2004, Howard contacted Sears and learned that Kimberly no longer worked there; he also contacted a victim witness coordinator who said she was working with Kimberly’s parents to locate her. He thereafter checked a number of standard databases and directories and personally visited Kimberly’s parents twice. The totality of these efforts established reasonable diligence in that the prosecution conducted substantial, good faith efforts to search; effectively pursued leads; and acted in a timely fashion given Kimberly’s recent appearances in court. Despite these efforts, “it is fairly clear [Kimberly] purposely made herself unavailable because she was unwilling to testify.” (People v. Diaz, supra, 95 Cal.App.4th at p. 706.)
Appellant relies almost exclusively on Cromer, supra, 24 Cal.4th 889, in asserting that the prosecution did not exercise reasonable diligence. Cromer is readily distinguishable. There, the prosecution was on notice of a witness’s disappearance less than two weeks after the preliminary hearing on June 13, 1997 and over two months before the original trial date of September 9, 1997. Although a subpoena was issued for the witness to attend trial on September 9, the prosecution made no effort to serve it on the witness. (Id. at p. 903.) Nor did the prosecution make any effort to serve a subsequently issued subpoena for the witness to appear on the rescheduled trial date of December 11, 1997. Even though the prosecution knew as early as June 1997 that the witness had disappeared from the neighborhood where she had lived, the only effort made to locate her was in December 1997, when investigators made a few visits to her former residence. (Ibid.) Trial was put over again, and on January 20, 1998, after the case had been called for trial, the prosecution finally learned the witness was living with her mother in San Bernardino. (Ibid.) Despite the imminence of trial, the prosecution waited two full days to follow up on this information and obtain the relevant address. (Id. at pp. 903–904.) After jury selection had begun, an investigator went to the mother’s residence, where he learned the mother would return the next day. Despite the fact that the mother was the person most likely to know the witness’s whereabouts, the investigator neither returned to the residence nor undertook any other efforts to contact the mother. (Id. at p. 904.) On the basis of this chronology, the court concluded that “serious efforts to locate [the witness] were unreasonably delayed, and investigation of promising information was unreasonably curtailed.” (Id. at p. 904.)
The evident lack of diligence in Cromer contrasts with the prosecution’s behavior in this case. Unlike the failure of the Cromer prosecution to make any attempt to serve the witness with a subpoena until shortly before trial had begun and long after learning she had changed her address, the prosecution in this case diligently pursued Kimberly’s whereabouts, served her with a subpoena and caused her to appear twice in court before she disappeared again. When Kimberly did not appear, the prosecution followed up on known leads with her employer and parents, and conducted a number of computerized searches. In contrast to Cromer, the prosecution here undertook timely and serious efforts to locate Kimberly and diligently pursued promising information. (See People v. Wilson, supra 36 Cal.4th at p. 342 [due diligence shown by investigator’s two-day effort to locate a witness for retrial by visiting the witness’s last known address, attempting to locate his known associates, and checking police, county, and state records using the witness’s aliases]; People v. Diaz, supra, 95 Cal.App.4th at pp. 706–707 [due diligence shown by investigator’s speaking with a witness’s mother and brother, going to schools the witness had attended, asking patrol officers to look for the witness, and checking hospital, arrest and DMV records].)
We also reject appellant’s assertion that the prosecution failed to exercise due diligence because it did not conduct “minimal surveillance” of Kimberly so as to prevent her disappearance. As explained in People v. Hovey (1988) 44 Cal.3d 543, 564, a court “could not properly impose upon the People an obligation to keep ‘periodic tabs’ on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state or simply ‘disappear,’ long before a trial date is set.” (See also People v. Cummings, supra, 4 Cal.4th at p. 1298 [“That additional efforts might have been made or other lines of inquiry pursued does not affect” a finding of due diligence]; People v. Diaz, supra, 95 Cal.App.4th at p. 706 [“‘Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” [Citations.] The law requires only reasonable efforts, not prescient perfection’”].)
In view of the totality of the efforts to locate Kimberly, we conclude that the trial court properly found that prosecution exercised due diligence and that Kimberly was an unavailable witness pursuant to Evidence Code section 240, subdivision (a). Accordingly, the trial court properly admitted her preliminary hearing testimony pursuant to Evidence Code section 1291.
II. The Trial Court Properly Exercised Its Discretion in Admitting Expert Testimony.
During trial, outside the presence of the jury, appellant objected to the admission of testimony from domestic violence expert Dr. Kaser-Boyd. Appellant argued that this was not a domestic violence situation, as the evidence against him involved only threats and not actual physical violence. The next day, the trial court determined that Dr. Kaser-Boyd’s testimony was admissible, ruling that “under [section] 801 of the Evidence Code, this is an area that is not necessarily understood by common experience and that expert testimony is helpful on. And that the facts in this case leading up to the incident are sufficient for our purposes.”
Appellant contends that the admission of Dr. Kaser-Boyd’s testimony concerning the characteristics of domestic violence victims was error, as there was no evidence of physical violence between appellant and Kimberly. We review the trial court’s decision on the admissibility of expert opinion testimony for an abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 266; People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) We find no abuse here.
To be relevant and admissible, an expert’s testimony must be related to a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact. (Evid. Code, § 801, subd. (a).) In People v. Brown (2004) 33 Cal.4th 892, a domestic violence expert offered testimony similar to that of Dr. Kaser-Boyd, explaining that the “cycle of violence” in an abusive domestic violence relationship may begin with psychological, emotional, or verbal abuse and later escalate to physical violence, and describing the tendency of domestic violence victims to recant previous allegations of abuse and possibly change their minds about prosecuting the abuser. (Id. at p. 907.) The Brown court concluded that there was an adequate foundation for such expert testimony because the evidence presented at trial suggested the possibility that the defendant and his girlfriend were in an abusive relationship. (Ibid.) The evidence showed that the defendant had earlier criticized and argued with the girlfriend, then later threatened her and ultimately physically assaulted her. (Ibid.) That the evidence revealed only one instance of violence did not affect the admissibility of the testimony. “We conclude that in this case the [expert testimony on domestic violence] was admissible under Evidence Code section 801, because it would assist the trier of fact in evaluating the credibility of the victim’s trial testimony and earlier statements to the police, by providing relevant information about the tendency of victims of domestic violence later to recant or minimize their description of that violence.” (Id. at pp. 895–896.)
The trial court properly exercised its discretion in similarly concluding that expert testimony on the behavior of domestic violence victims would assist the trier of fact and that there was an adequate factual foundation for that testimony. As explained in People v. Brown, supra, 33 Cal.4th 892, expert testimony may assist the trier of fact by dispelling common misperceptions: “When the trial testimony of an alleged victim of domestic violence is inconsistent with what the victim had earlier told the police, the jurors may well assume that the victim is an untruthful or unreliable witness. [Citations.] And when the victim’s trial testimony supports the defendant or minimizes the violence of his actions, the jurors may assume that if there really had been abusive behavior, the victim would not be testifying in the defendant’s favor. [Citations.]” (Id. at p. 906; see also Alana Bowman, A Matter of Justice: Overcoming Juror Bias in Prosecutions of Batterers Through Expert Witness of the Common Experience of the Battered Woman (1992) 2 S. Cal. Rev. L. & Women’s Stud. 219, 234–236 [behaviors typical of domestic violence victims are beyond jurors’ common experience, and jurors commonly harbor misconceptions about the reasons for these behaviors].) Here, where Kimberly declined to attend trial and signed a letter seeming to recant her previously allegations of abuse, the trial court properly exercised its discretion in ruling that expert testimony would be helpful because her behavior would not necessarily be understood by common experience.
Furthermore, the evidence presented at trial supported the admission of the testimony, as it suggested that appellant and Kimberly were in an abusive relationship. The evidence showed that appellant went to Kimberly’s residence, accusing her of having someone inside with her. He had threatened Kimberly on several occasions and ultimately returned to her residence with a gun. During a 911 call, Mary also stated that appellant had been jumping on the door and that he had broken some things around the house. Appellant’s behavior and Kimberly’s response mirrored the cycle of violence that Dr. Kaser-Boyd described, where small incidents lead to frustration or mistrust and then there is “an actual explosion of anger where the battering occurs or threats occur,” which is often followed by a honeymoon phase where the batterer makes promises and the victim recants any allegation of battering.
We reject appellant’s argument that Dr. Kaser-Boyd’s testimony lacked foundation because there was no evidence of physical violence between appellant and Kimberly. As Dr. Kaser-Boyd explained, domestic violence may erupt in the form of actual battering or threats. (See also Evid. Code, § 1107, subd. (c) [for the purpose of permitting expert testimony on the subject, “‘domestic violence’ . . . may include acts defined in . . . Section . . . 422”]; § 13700, subds. (a) & (b) [for the purpose of law enforcement response, “‘[a]buse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another” and “‘[d]omestic violence’ means abuse committed against an adult . . . with whom the suspect has had a child”].) There was sufficient evidence of a domestic violence relationship between appellant and Kimberly to support the admission of Dr. Kaser-Boyd’s testimony.
In any event, even if the trial court had abused its discretion in admitting expert testimony, the error would be harmless, as a more favorable outcome was not reasonably probable in the absence of such testimony. (See People v. Watson (1956) 46 Cal.2d 818, 835–836.) The jury received a limiting instruction concerning Dr. Kaser-Boyd’s testimony that it could not be used to prove the occurrence of the acts charged and that it could be considered only for the limited purpose of explaining “the beliefs, perception or behavior of victims of domestic violence.” We presume the jury followed this instruction. (E.g., People v. Welch (1999) 20 Cal.4th 701, 773.)
III. Appellant’s Criminal History Supported Imposition of the Upper Term.
Finally, appellant contends that the imposition of the upper term on count 1 violated his constitutional right to a jury trial because it was premised on facts neither found by the jury nor admitted by him. (See Cunningham v. California (2007) 549 U.S. __, 166 L.Ed.2d 856, 127 S.Ct. 856.) Again, we find no error. At sentencing, the trial court selected the upper term because of appellant’s “criminal history,” pointing out that appellant had a prior conviction for violating Health and Safety Code section 11350, which occurred while he was on parole for a violation of section 245, subdivision (a)(2). The trial court also acknowledged that appellant had also sustained a number of misdemeanor convictions. It added it appeared that appellant was the “promoter” of the robbery.
In People v. Black (2007) 41 Cal.4th 799, 813 (Black), our Supreme Court recently held that the presence of a single aggravating factor is legally sufficient to render a criminal defendant eligible for an upper term 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.” (Accord People v. Yim (2007) 152 Cal.App.4th 366, 369 [“A single aggravating factor may support a sentencing choice”].)
The Black court further concluded that “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 conviction.” (People v. Black, supra, 41 Cal.4th at p. 816.) Importantly, the court in Black held that a trial court’s reliance on a defendant’s criminal history in sentencing the defendant does not violate the Sixth Amendment and renders the defendant eligible for imposition of the upper term. According to the court: “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (People v. Black, supra, at pp. 819–820, fn. omitted.)
In imposing the upper term on count 1, the trial court relied on appellant’s numerous prior convictions and the fact he committed one of those offenses while on parole. (See People v. Black, supra, 41 Cal.4th at pp. 818–820 [the “fact of a prior conviction” broadly construed covers a defendant’s criminal history as reflected in records of the prior convictions].) The imposition of the upper term on count 1 did not infringe upon appellant’s constitutional right to a jury trial.
DISPOSITION
The judgment is affirmed.
We concur ASHMANN-GERST, J., CHAVEZ, J.