Opinion
F049510
5-4-2007
THE PEOPLE, Plaintiff and Respondent, v. CHARLES PAUL WILSON, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Charles Paul Wilson was convicted of two counts of robbery and one count of possession of a firearm by a felon. In addition, it was found he used and discharged a weapon in one robbery and personally used a weapon in the second robbery. It was also found true that he suffered a prior serious felony conviction within the meaning of the Three Strikes Law (Pen. Code, § 667.6). He appeals, claiming the trial court erred in admitting drug use evidence to prove motive, the court abused its discretion when it refused to strike his prior serious felony conviction, his possession-of-a-firearm conviction should be stayed, and the court erred in imposing the aggravated term based on facts not found by the jury beyond a reasonable doubt. Except to direct correction of a clerical error in the abstract, we affirm the judgment.
FACTS
On November 5, 2004, Julie Wilson (no relation to defendant) was working in a health store. At approximately 4 p.m., defendant walked in and asked Julie to help him find some supplements for liver health. She talked to him for about 15 minutes and helped him pick out items. She went to the cash register and rang up the items. Defendant said he did not have money to pay for the items and told her to put the items in a bag. He said he was going to use her money and then told her to put the money in his bag. She said she did not have any money. Defendant pulled out a gun. Julie continued to claim that she did not have any money. Defendant clicked the gun and held it towards her and repeated his command to put all the money in the bag. Julie continued to state that she did not have any money. Defendant then fired the gun twice to the right of Julie and toward the ground. The firing of the gun grabbed her attention and she gave him all of the money from the register. She estimated that she gave him approximately $ 2,000. Defendant walked out and Julie called 911.
Approximately two weeks after the robbery of the health store, Julie was shown a photographic lineup. She identified defendant in the lineup. At trial, she identified a bag as the one utilized by defendant and identified a gun as looking like the gun defendant used during the robbery. She identified defendant at trial as the man who robbed her. A 16-minute video of the robbery and time preceding the robbery, when defendant was in the store, was played during trial.
On November 14, 2004, Andrew Warber was working as the manager at a pizza establishment. He noticed defendant walking by the window several times. Eventually defendant walked in and Warber asked how he could help him. Defendant pulled a gun from a zippered bag. Defendant was wearing a jumpsuit, either blue or green. Warber "freaked out" and gave defendant the money out of the register and then out of the safe. He put the money into defendants bag. He gave him approximately $ 500. In addition, Warber gave defendant his telephone and his wallet. Warber said that defendant must have known where the cameras were in the store because he walked in backwards and initially positioned himself in a blind spot from the cameras.
Warber was not 100 percent sure at trial of his identification of defendant, but said that defendant met the general description of the man who robbed him. Warber was shown a bag and a gun. He said they did not appear to be the bag and gun he saw during the robbery. Warber picked defendants photograph from a photographic lineup but he was not positive.
Gary Anderson was working with Warber the night of the robbery. Anderson was making pizzas and was not paying close attention. He saw Warber pull money out of the safe and then realized that perhaps a robbery was going on. Defendant also leaned over the counter and took money from behind the counter. The man had a bag and was wearing a dark blue jumpsuit.
Anderson selected defendants photograph from a photographic lineup as the robber within four to five seconds of viewing the lineup. He thought he recognized defendant in court, but he was not sure. He identified the blue jumpsuit at trial as the jumpsuit the robber was wearing.
Kimberly Lopez worked at a drug store in the same shopping center as the pizza establishment. She was in the parking lot collecting carts when she saw a man walking fast across the front of the drug store to a car. The car was running and the man got into the back seat. The vehicle was a gold Jeep Cherokee, with rims and tinted windows. Later that evening, when she saw officers at the pizza establishment, she told them what she had seen in the parking lot.
Lopez identified defendant at trial as the man she saw in the parking lot. She was not able to identify him from a photographic lineup. Lopez identified a picture of the Jeep Cherokee as the vehicle she saw that evening.
A video of the November 14 robbery was played for the jury.
On November 16, 2004, Fresno Police Department Sergeant Elizabeth Mormolejo saw a Jeep that matched the description given by Lopez. The car was stopped. The driver of the car was George Washington. The front passenger was Robert Thomas. The rear passenger was Benny Fuentes. Washington had drugs on his person. Fuentes had cocaine and heroin and had tried to hide a hypodermic needle in the back seat. A drug kit with drugs was found near Fuentes. In addition, the searching officers found a black leather zippered bag containing a fully loaded silver revolver.
Police went to defendants home. He was present. They searched and found a blue jumpsuit in his room. In addition, they found wigs and hats. A burgundy case was taken out of the night stand. It contained a drug kit. Gloves that resembled the gloves worn by the robber in the video of the robbery at the pizza establishment were also found in defendants house. Defendants telephone number was in an address book seized from Washington.
Robert Thomas spoke to police on the day of the traffic stop. He testified at trial. Thomas said that he had used drugs every day for the past few months with defendant and Washington. Thomas was using heroin during this time. He had seen the black bag and the gun before. Washington had the gun in the bag. Thomas had also seen defendant with the gun earlier on November 16th. Thomas testified that defendant had been complaining about the robberies he had done by himself. These robberies were not doing anything for him because he was not receiving enough cash for them. Thomas admitted that he had prior convictions or juvenile adjudications for rape, grand theft, vehicular manslaughter, drug sales, and being a felon in possession of a weapon.
A criminalist compared bullet fragments retrieved from the health store robbery with bullets fired from the gun obtained in Washingtons car. She was unable to make a positive identification but testified that the characteristics were the same when they were compared.
In addition to the above robberies, defendant was charged with two other robberies; one at a sandwich shop on November 11, 2004, and one at another pizza establishment on November 8, 2004. The jury found him not guilty of these robberies.
DISCUSSION
I. Admission of Evidence of Drug Usage
Defendant and Washington were originally scheduled to be tried together. Washingtons counsel made a pretrial motion to exclude all evidence related to narcotics at the time Washingtons car was stopped. Washington had previously pleaded guilty to the drug charges. He argued that the drug evidence was not relevant and furthermore that it should be excluded under Evidence Code section 352.
The People argued that the drug evidence was relevant to support Thomass statement that he consumed drugs with Washington and defendant, to show that he had a relationship with them and to demonstrate a motive for the robberies.
Defendant joined in the motion to exclude the evidence because he was not in the car when the drugs were found and also argued that the evidence was prejudicial.
The court denied the motion to exclude the drug evidence, finding its probative value outweighed its prejudicial effect. The court found the drugs were part and parcel of the entire case and were relevant to Thomass knowledge of Washingtons and defendants activities. The court also found that the drug evidence was relevant for motive.
Shortly thereafter the court severed the case of Washington from defendants case. Counsel for defendant renewed his motion to exclude the narcotics evidence because the drugs were found in Washingtons car and Washington was no longer part of the case. Defendant argued that the evidence should be excluded under Evidence Code section 352.
The court asked whether Thomas was going to talk about consuming drugs with both of them. The courts question was answered in the affirmative. The court then stated it would seem like the evidence would be applicable to both defendants and denied the renewed motion.
When the People sought to introduce the burgundy case taken from defendants home, defendant objected. The case held a drug kit. Defendant argued that he was not charged with any drug crimes and there was no evidence that he owned the kit. Defendant objected to the admission of the case based on relevance and Evidence Code section 352.
The People argued the kit was highly probative and relevant to the case.
The court overruled the objection, finding that there was a drug connection to the case and it was more probative than prejudicial.
The prosecutor repeatedly utilized the drug evidence during his closing argument, talking about motive to commit the crimes and motive for Thomas to testify as he did.
"[Prosecutor] The defense is entitled to give a closing argument so Im anticipating a little bit what they will say, should they give a closing argument. Is that Mr. Thomas had a motive of some kind. You question in your mind, whats his motive? Whats he doing? You know that Mr. Thomas, Mr. Wilson, Mr. Washington were all using drugs. They were all using heroin and cocaine, speed balling. The motive of a drug user is to get money to pay for drugs. And you know Mr. Washington had to borrow funds, and you know they were getting drugs together and using drugs, essentially, daily. Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in the case. The presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty. And motive may also show if a witness is being truthful or untruthful, depending on motive you find. And lets look at Mr. Thomas for a moment. And I want to caution you, this case is not about Mr. Thomas. Mr. Thomas is corroborative evidence. And it just so happens that Mr. Thomas was the person that revealed who was involved in the robberies.... Mr. Thomas you heard, testified he was in a car. In a jeep. And inside of that jeep, apart from the drug paraphernalia which corroborates his statement, they were all using drugs. And Mr. Washington has it on his person, and other drugs and paraphernalia were found in the car. Separate and apart from that is found a gun in the bag connecting the gun in the bag to Mr. Washington. Defense will no doubt tell you it connects it to Mr. Thomas, but look, please, ladies and gentlemen, at the evidence, if any, of Mr. Thomass presence in that vehicle that connects him to that weapon in any way. He is not on the video. He is certainly not the tall, thin guy in the video. At best you could say was Mr. Washington. It does not look like Mr. Thomas. So what is the connection of Mr. Thomas. He told you the connection of Mr. Thomas. Mr. Thomas stated he just happened to be going with him in the car, but he knew of that gun. They both — Mr. Wilson and Mr. Washington, he knows them for about two months. They use drugs together. They are associates. Not really friends. Not really acquaintances. But they associate. They have this common interest. Drugs. And is that good? No. Its horrible. But you know, ladies and gentlemen — and I mean, this not to disparage anybody. But when you — when you go for a walk in a sewer, you will not see swans. And ladies and gentlemen, this is a group thats using heroin together. Thats it. And so, when you look to motive, you will see that Mr. Thomas is speaking truthfully to you here in this courtroom and spoke truthfully."
The prosecutor continued to speak about Thomas and his drug connection with defendant. He pointed to the kit found in defendants home and said that this corroborated Thomass claim that he used drugs with defendant and Washington. The People argued that Washington had a paper with defendants name on it and this corroborated Thomass testimony that he and Washington and defendant were hanging out using drugs.
The prosecutor discussed circumstantial evidence. One item of evidence he discussed in this portion of his argument was the drug kit found at defendants residence. "I would note also in the circumstantial evidence the fact of the kit at Mr. Wilsons residence, that is an example of circumstantial evidence. We know its a kit. We know its used for drugs. The inference is he uses them. It is true in that particular instance. In Mr. Washingtons case we recovered drugs from his person. In the case of the kits in the car, it wasnt on his person. Its an inference that hes going to use that kit and to inject those drugs. Similar to the kit at Mr. Wilsons residence. So that is a piece of circumstantial evidence. What does it matter? It matters, again, because it is corroborative of Mr. Thomas. It is corroborative of our motive in this case. Money, which is obvious from a robbery. But why do you need it? You need it because you have a terrible drug habit."
The People argued that the items in the Jeep corroborated what Thomas said about drug use and again mentioned the drug kit as corroboration.
In his closing argument, defendant attacked the credibility of Thomas and attacked the eyewitness identifications. He claimed that Thomas said someone named "Paul" was a participant in the robberies, but the "Paul" he initially identified was someone he feared, not defendant. Thomas only named defendant (Paul Wilson) after he was pressed further and because he feared the other Paul.
In his closing argument to the jury, the prosecutor again referenced the drug kit found in defendants home as confirming Thomass testimony. The district attorney referred again to the drugs in the car and in referring to Thomass drug habit said, "He was a heroin user. Its a grotesque habit, but it was his."
Defendant contends the trial court erred when it allowed the People to present evidence of drugs found in Washingtons car and a drug kit found in defendants home. In addition, he argues the admission of this evidence allowed the prosecution to hammer away on the drug use connection between defendant, Thomas, and Washington. Defendant claims the admission of the drug evidence to bolster Thomass credibility was erroneous, particularly because the drugs found in the Washington vehicle were not connected to defendant in any way. In addition, defendant argues that the admission of drug use to prove motive for theft-related crimes is wrong because poverty may not be used as a motive tending to prove theft. In closing, defendant argues the jury had considerable difficulty with this case as evidenced by their acquittal on two counts and the questions asked the court during deliberations. Defendant asks for a new trial based on the error in admitting the drug evidence.
In People v. Cardenas (1982) 31 Cal.3d 897 the Supreme Court discussed the admissibility of evidence of drug use and addiction. "The rule applicable here is that evidence of an accuseds narcotics addiction is inadmissible where it `tends only remotely or to an insignificant degree to prove a material fact in the case .... (See People v. Davis (1965) 233 Cal.App.2d 156, 161.)
"Prior cases have upheld the admission of evidence of an accuseds narcotics addiction where the accused was charged with a violation of the Health and Safety Code or where obtaining narcotics was the direct object of the crime committed. (People v. Morales (1979) 88 Cal.App.3d 259, 264 [possession of heroin]; People v. Copeland (1959) 169 Cal.App.2d 713, 715 [forgery of drug prescription]; People v. OBrand (1949) 92 Cal.App.2d 752, 754 [burglary of drugstore to steal narcotics].) However, in cases where the object of the charged offense was to obtain money or an item other than narcotics, evidence of the accuseds narcotics use has been uniformly found inadmissible. (People v. Bartlett (1967) 256 Cal.App.2d 787, 793-794 [theft of spark plugs from service station]; People v. Davis, supra, 233 Cal.App.2d at pp. 161-162 [robbery of money from liquor store]; People v. Enriquez (1961) 190 Cal.App.2d 481, 485 [attempted robbery of money from grocery store]; People v. Guiterrez (1957) 152 Cal.App.2d 115, 122-123 [attempted burglary of clothing store].)
"As the Bartlett court found, the evidences `probative value to show motive [is] far outweighed by its tendency to incite a jury to resolve the issue of guilt or innocence on [an accuseds] character rather than on proof of the essential elements of the crime. (People v. Bartlett, supra, 256 Cal.App.2d at p. 794.)
"The impact of narcotics addiction evidence `upon a jury of laymen [is] catastrophic. ... It cannot be doubted that the public generally is influenced with the seriousness of the narcotics problem ... and has been taught to loathe those who have anything to do with illegal narcotics in any form or to any extent. (People v. Davis, supra, 233 Cal.App.2d at p. 161.)" (People v. Cardenas, supra, 31 Cal.3d at pp. 906-907.)
The court found it was error to admit this evidence. "In this case, the prosecution was permitted to introduce evidence of appellants narcotics addiction to establish a financial motive for the attempted robbery of the 7-Eleven store. The witnesses testified at great length about appellants physical condition at the time of his arrest, the length of time appellant had been using narcotics, and the alleged size and value of appellants heroin habit.
"This testimony tended `only remotely to prove that appellant had committed the attempted robbery of money from the 7-Eleven store. In addition, the probative value of the evidence was substantially outweighed by the inflammatory effect of the testimony on the jury. Hence, admission of the testimony concerning appellants use of narcotics was improper." (People v. Cardenas, supra, 31 Cal.3d at p. 907.)
People v. Reid (1982) 133 Cal.App.3d 354, 363, instructs: "The fact that appellant used drugs, without more [proof of the price of a defendants habit], does not have a tendency to prove a motive for robbery. The prosecutions failure to establish these matters [cost of defendants habit or use], coupled with the fact that other crimes evidence involving the use of narcotics presents a grave danger of improperly influencing the jury, establishes that the evidence should have been excluded. [Citation.]"
"Narcotics use must have a direct probative value to establish motive before its admission is permitted." (People v. Felix (1994) 23 Cal.App.4th 1385, 1393.) In Felix, the direct connection was established by defendants own statement that he burglarized his sisters home in order to get money to buy drugs.
Citing Felix, the People contend that evidence of narcotics may be admitted to show that a defendant had a motive to steal in order to purchase narcotics as long as there is a connection between the charged crime and the drug use. Respondent finds the connection and states "appellant was connected to drug use, and that drug use provided him with a motive to commit robberies."
We disagree with the People. Other than the fact that he used drugs, there was nothing directly connecting defendants drug use to the robberies. Although Thomas testified that he, Washington, and defendant used two or three grams of narcotics a day, there was no evidence presented of the monetary value of defendants drug habit nor was there any evidence that defendant had to resort to stealing in order to support his drug habit. Obtaining narcotics was not the direct object of the robberies. The actual narcotics were found in the Jeep, but defendant was not present in the Jeep when it was stopped. The drug evidence was only remotely connected to the robberies and was far outweighed by its prejudicial effect on the question of motive. The narcotics evidence here did not have a direct probative value to establish motive and should have been excluded.
The People argue that the drug evidence was relevant to corroborate Thomass testimony that he knew defendant. Thomass testimony regarding his relationship with defendant and Washington could have been sufficiently corroborated by other means without resort to admitting the drug evidence. Thomas was in the car with Washington. Washington had defendants telephone number. Thomas showed officers where defendant lived and picked defendants photograph from a photographic lineup. Defendant was identified by Lopez as the person she saw getting into the Jeep after the pizza establishment robbery; this was the same Jeep containing Washington and Thomas when it was stopped. Thus, the connection between Thomas and defendant could have been easily proved without resorting to the very prejudicial, yet remotely relevant, evidence that Thomas, Washington, and Wilson engaged in the daily use of drugs.
The admission of this evidence allowed the prosecution to liken defendant to a "sewer" dweller, and to describe drug use as a horrible, terrible, grotesque habit. The People were allowed to argue that defendant had a motive: he needed money and the reason he needed the money was because he had a "terrible drug habit."
The People argue that defendant has waived his "baseless contention" that the prosecutor erred when it argued that defendants narcotic use could be used as a motive for the robberies because defendant did not object to the argument when it was made.
Defendant objected on three separate occasions to the admission of the evidence. On each occasion the objection was overruled. The court stated that the evidence was admissible to prove the connection of Thomas to defendant and to prove motive. Because the trial court said the evidence was admissible to prove motive, defendant had no reason to object to the argument of the prosecutor on this ground. Defendant has not waived the objection.
We must now determine if, absent the error in the admission of the drug evidence, it is reasonably probable that the jury would not have convicted defendant of the charged offenses. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The jurors began their deliberations on November 17, 2005, at 2:39 p.m. The jurors were excused at 4:30 p.m., having asked to view and having viewed the videos of the robberies. The jury resumed deliberations the next morning at 8:55 a.m. they deliberated the entire day and made several requests. They requested a magnifying glass to view photographs, they asked for a readback of the cross-examination of Thomas on the question of the other "Paul," they requested a readback of the detectives testimony regarding the traffic stop and the showing of photographs to Thomas, they asked for assistance to move forward at 2:20 p.m. because they were unable to agree on a verdict, and at 2:55 p.m. they asked to hear a readback of the testimony of Wilson.
The following day one of the jurors did not show up. The juror was replaced with an alternate and the jurors were instructed to begin their deliberations anew at 10:29 a.m. They asked if there was a stipulation regarding fingerprints on the gun. They were told there was no such stipulation. They asked for guidance regarding the charges that they were unable to decide because they could not arrive at a unanimous verdict. The court gave them further instructions on their deliberations at 3:01. At 4:08 p.m. they reached their verdicts.
Thus, although the jury deliberated over the course of three days, when the jury was reconstituted it reached a verdict in a fairly short period of time. Julie Wilson was able to observe defendant for over 15 minutes and positively identified defendant in a photographic lineup and at trial. She identified the bag and gun found with Washington and linked to defendant as the gun and the bag used during the robbery. The bullet fragments found at the scene of the health store robbery had characteristics that matched the bullets fired from the gun seized from Washingtons vehicle. The jury was able to view the videotape of the robbery.
Warber was not positive of his photographic identification of defendant or his identification of him at trial. In addition, Warber said he did not recognize the gun and the bag seized from Washingtons car as the items used during the robbery. Although Warbers testimony was equivocal, Anderson and Lopez provided strong evidence against defendant. Anderson positively identified defendant from a photographic lineup in a matter of seconds. He was not positive of his identification of defendant at trial, but he thought that defendant resembled the robber. He said the jumpsuit located in defendants bedroom looked like the jumpsuit worn by the robber. Lopez was not able to identify defendant from a photographic lineup, but she identified him at trial as the man she saw leaving the pizza establishment after it was robbed. Lopez positively identified the Jeep as the vehicle she saw defendant enter on the day of the robbery. The Jeep was tied to defendant through his association with Washington and Thomas (even absent the drug connections). The jury was able to view the video of the robbery.
We also note that while jurors may loathe those who have anything to do with illegal narcotics, the jurors here found defendant not guilty of two of the charges against him, thus demonstrating their ability to arrive at a verdict without being unduly influenced by defendants drug use.
Based on the above analysis, we find that error in admitting the drug evidence was harmless.
II. Romero Motion
It was found that defendant suffered a serious prior conviction within the meaning of the Three Strikes Law. In 1978, defendant shot and killed his ex-wife and was convicted of voluntary manslaughter. This conviction was used as a strike to double the sentences imposed for the robbery convictions.
Defendant asked the court to exercise its discretion under Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and strike the use of his serious prior felony conviction as a strike under the Three Strikes Law. He argued that although he has a lengthy criminal record, the conviction was nearly 30 years old, he is now 54 years old and has no other serious violent priors.
The court denied the motion, finding that defendant is a lifelong career criminal who started his criminal career around 17 years of age. He was in the penal system continuously with the exception of some years in the mid 1990s. His criminal career spanned 37 years and affected many people.
A trial courts decision not to strike a prior conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367.) The circumstances must be extraordinary to find that a career criminal falls outside the spirit of the Three Strikes Law. (Id. at p. 378.) This is not such a case. Defendant clearly falls within the revolving-door career-criminal category. While his qualifying prior is almost 30 years old, he has engaged in a series of crimes beginning in 1969. The trial court did not abuse its discretion when it refused to strike defendants prior serious felony conviction.
III. Possession of a Weapon as a Separate Punishable Offense
Defendant was convicted of possession of a firearm by a felon. The court imposed a concurrent term of six years for this count. Defendant contends his punishment for this count must be stayed because the possession of the firearm was not independent of the robbery offenses.
Defendant was charged with possession of a firearm from November 5, 2004 to November 16, 2004. Thomas testified that defendant had possession of the gun on November 16, 2004. Thus the possession of the gun by a felon occurred separate and distinct from the robberies. The court was not required to stay the sentence pursuant to Penal Code section 654. (People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1149.)
IV. Imposition of Upper Terms
The court imposed the upper term for each of the robberies, although the term on the second count was imposed as the middle term because it was a consecutive term. The court somewhat garbled its reasons for aggravating defendants sentence with its reasons for denying defendants request to strike his strike under the Three Strikes Law.
The court made the following statement of reasons: "In particular, I would note the extreme dangerousness of your acts, and Im not sure you, but maybe you wouldnt mind, but Im not sure I ever want you back out on the street threatening my grandchildren when they are working at a place like this, where you are shooting a gun off to get their attention, after they have spent 20 minutes trying to help you with medical needs. Thats just really outrageous, and perhaps it is a sign of how bad youre addicted to drugs or whatever, but its apparent that in each of these cases, you are planning out your acts, you are arming yourself with a gun, and youre threatening people with it. Most of the time its young people that are just trying to start their lives by working in fast food places or small stores. That itself is extremely aggravating to me, that you would do that, put these people in harms way for basically your drug habit. Thats basically what it comes down to.
"With regard to the case itself, its apparent that there are many aggravating factors. Your crimes involve great violence, great bodily harm, or threat thereof, and to me, certainly a high degree of callousness to others. As I mentioned, the crimes were carried out with planning and sophistication, and somewhat professionalism. And as I mentioned, I think a serious danger to society. Its kind of a time I think you need to retire, put you away so you dont hurt anybody anymore.
"The acts are, certainly early on, have increased in seriousness, particularly recently. You have several prior prison terms and Im not sure any performance on probation or parole is satisfactory, considering your drug use, and your other acts."
In Cunningham v. California (2007) 549 U.S. ___ the United States Supreme Court held that Cunninghams right to trial by jury was denied under Californias determinate sentencing law (DSL) because the judge, not the jury, found the facts that resulted in an upper term sentence. Petitioner Cunningham was convicted of continuous sexual abuse of a child. Under Californias DSL Cunningham could be sentenced to the lower term of six years, the mid term of 12 years, or the upper term of 16 years. In order to receive the upper term the judge had to find one or more factors in aggravation. The trial judge found six aggravating factors, including victim vulnerability and that Cunningham was a serious danger to the community based on his violent conduct. Cunninghams lack of a prior record was found as the sole factor in mitigation. The trial court found that the aggravating factors outweighed the one mitigating factor and sentenced Cunningham to the upper term. The appellate court upheld his sentence. The California Supreme Court denied Cunninghams petition for review having recently decided in People v. Black (2005) 35 Cal.4th 1238 (Black) "that judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... under California law does not implicate a defendants Sixth Amendment right to a jury trial." (Id. at p. 1244.)
The United States Supreme Court granted review and disagreed with the California Supreme Courts decision in Black. "[T]he Federal Constitutions 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." (Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. at p. 860.)
Defendant has asked that we reduce his upper term sentence on the first count to the middle term, yet he provides no analysis other than to say that the court relied on factors not authorized post-Cunningham.
Although the trial court said the "acts" have increased in seriousness, this appears to be a clear reference to defendants prior convictions not "acts." In addition, the court relied on the fact that defendant had served several prior prison terms. Both of these factors arise from the realm of a prior conviction(s) as facts that need not be found by a jury beyond a reasonable doubt. The court found that the aggravating circumstances "far outweigh the mitigating circumstances." The court actually found no mitigating circumstances.
We need not decide whether there was Cunningham error. In light of the courts proper use of defendants prior convictions as factors in aggravation and the courts indication that the aggravated term was by far the clear choice, any error was harmless beyond a reasonable doubt.
The court imposed consecutive sentences for the robberies. In doing so, the court stated, as its reasons, the crimes involved separate threats of violence and were committed at different times and separate places. Even assuming for the sake of argument that Cunningham might apply to the imposition of consecutive sentences, it would not alter the choice to impose consecutive sentences here. The separateness of the two robberies is inherent in the verdict—they occurred on separate dates, at separate places, and involved separate victims.
DISPOSITION
The judgment is affirmed. We note that the abstract of judgment does not list the five-year prior serious felony term that was imposed pursuant to Penal Code section 667, subdivision (a). The total term properly reflects its imposition. We thus direct the trial court to correct the abstract of judgment to reflect the imposition of the five-year prior serious felony enhancement and forward corrected copies to the appropriate authorities.
We concur:
HARRIS, J.
WISEMAN, J.