Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC454838
Bamattre-Manoukian, Acting P.J.
Defendant Howard Allen Young was convicted after jury trial of 14 counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), 14 counts of grand theft (§§ 484, 487, subd. (a)), and one count of selling stolen property (§ 496, subd. (a)). The jury found as to three counts of grand theft that the loss exceeded $50,000, and as to another count of grand theft that the loss exceeded $150,000 (§ 12022.6, subds. (a)(1) & (2)). In addition, the jury found that defendant had a prior serious felony conviction for kidnapping that qualified as a strike. (§ 1170.12.) After denying defendant’s Romero motion, the trial court sentenced defendant to state prison for a term of 30 years, eight months.
Further unspecified statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant contends: (1) the admission of evidence of four uncharged offenses under Evidence Code section 1101, subdivision (b), violated his rights to due process and a fair trial; (2) the admission of hearsay evidence of three other uncharged burglaries violated his rights to confrontation and a fair trial, and counsel rendered ineffective assistance by failing to raise an objection to the evidence on those grounds; (3) the court abused its discretion by allowing him to be impeached with all four of his prior felony convictions; (4) the standard of proof in Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 375 violated his right to be convicted only by proof beyond a reasonable doubt; (5) the cumulative effect of the above errors denied him a fair trial and due process; and (6) imposition of an upper term sentence violated his rights to a jury trial and due process. As we find no error requiring reversal, we will affirm the judgment.
BACKGROUND
Defendant was charged by information with 16 counts of second degree burglary (§§ 459, 460, subd. (b); counts 1, 3, 6, 7, 9, 11, 13, 15, 17, 19, 21, 22, 24, 25, 27 & 30), 14 counts of grand theft of personal property valued over $400 (§§ 484, 487, subd. (a); counts 2, 4, 5, 8, 10, 12, 14, 16, 18, 20, 23, 26, 28 & 31), and one count of selling stolen property (§ 496, subd. (a); count 29). The information further alleged as to counts 14 and 31 that the loss exceeded $50,000 (§ 12022.6, subd. (a)(1)), and as to counts 16 and 18 that the loss exceeded $150,000 (§§ 12022.6, subd. (a)(2), 1203.045). In addition, the information alleged that defendant had a prior serious felony conviction that qualified as a strike (§ 1170.12).
Prior to trial, the court granted defendant’s motion to bifurcate trial on the alleged prior. The court granted the prosecutor’s motion to admit evidence of four uncharged offenses, finding the uncharged offenses “material to the issues of identity and common plan.” During trial, after defendant informed the court that he wished to testify, the court ruled that defendant’s prior kidnapping and three prior second degree burglary convictions could be used for impeachment purposes. The court also ruled, over defendant’s objection on Evidence Code section 352 grounds, that the prosecutor could present evidence of three additional out-of-county uncharged burglaries as rebuttal evidence.
The prosecution’s case was that, based on the testimony of witnesses, pictures taken from security surveillance videotapes and security computer records, the same person committed a series of similar burglaries and grand thefts in and around Santa Clara County between 2001 and 2004. The prosecution contended that the person who committed all of these burglaries and thefts was defendant, as defendant’s airline flight and rental car records coincided with the burglaries, defendant sold on eBay some of the property that was stolen during the burglaries, he had other stolen property at his home, and he was identified as being the person seen at the scene of two burglaries at the time of those burglaries. Defendant’s defense was that he traveled often for business, so it was just coincidental that his flight and car rental records coincided with the burglaries and thefts.
The Trial Evidence
Counts 1 and 2
Stephen Quan, a performance engineer for Silicon Graphics, Incorporated, (SGI) in Mountain View, was called into work on the night of Saturday, May 26, 2001, because there had been a burglary at his lab. He found pry marks on the lab door. He also found the computers inside the lab pulled out of their racks and bent open, and a supply cabinet open. Quan determined that memory cards were missing from the computers and the supply cabinet, and that new CPUs were also missing from the cabinet. The total value of the missing memory cards was about $50,000, and each of the missing CPUs were worth about $5,000. Quan suggested to a responding Mountain View police officer that the burglary might have been committed by a recently-laid-off employee.
The security system at SGI reported that at 8:35 a.m. on May 26, 2001, the door of the building housing the lab was forced open. Then, at 8:43 a.m., a lab door was forced open. The security surveillance video showed a tall African-American man inside the building lobby wearing a suit and a hat and carrying a white box toward the building doors.
Defendant flew from Honolulu to Los Angeles on May 23, 2001; from Los Angeles to San Francisco on May 25, 2001; from San Francisco to Los Angeles on May 27, 2001; and from Los Angeles to Honolulu on May 29, 2001. He paid for the flights with cash. He rented a vehicle from Hertz in San Francisco on May 25, 2001, and returned it on May 26, 2001, at 1:10 p.m.
Counts 3 Through 8
In September 2001, the companies Accenture, Game Change, and Novation Biosciences shared building space in Palo Alto. On Saturday, September 29, 2001, at 9:00 a.m., when Michael Stanton arrived at Game Change for work, he found the door to the Game Change server room propped open. The door had been pried open, the server was missing, and the rack where it had been was broken. On Monday, October 1, 2001, Accenture employees found that the door to their server room and other interior doors and some cabinets had been pried open and about 10 laptop computers valued at about $13,000 were missing. A security surveillance video showed that a man in a suit and baseball cap had been in the building. He had entered through a fire exit around 7:02 a.m. on September 29, 2001, and left near the main entrance. Robert Dickinson, vice president of engineering for Novation Biosciences, found that four of their notebook computers were missing, and that hard drives, processors and the memory had been taken from their main server. The value of the notebook computers was about $8,000, and the value of the parts taken from the server was over $4,000.
Defendant flew from Honolulu to Los Angeles on September 26, 2001; from Los Angeles to San Francisco on September 28, 2008; from San Francisco to Los Angeles on September 29, 2001; and from Los Angeles to Honolulu on October 8, 2001. He paid for the flights with cash. He rented a vehicle from Hertz in San Francisco on September 28, 2001, and returned it on September 29, 2001, at 3:50 p.m.
Counts 9 and 10
Around 11:00 a.m. on Saturday, December 8, 2001, Steven Okler, a security officer for Agilent Technologies in Palo Alto, noticed on a security monitor a man wearing a black suit, gloves, and a driving cap, and carrying a computer bag, inside one of their buildings. Okler walked over to that building and encountered the man outside. The man, who was approximately 6’4” tall, and who weighed between 200 and 240 pounds, was propping the door open and pushing a cart. Okler asked the man for his identification. The man said, “ ‘My badge is in my car,’ ” and started pushing the cart towards the parking garage. Okler followed the man at a distance. When the man got close to the garage, he abandoned the cart, ran to a silver Dodge Caravan, and sped away. The abandoned cart held 14 laptop computers, each worth about $2,000, and some with cut security cables still attached; an espresso machine; and a black canvas computer bag. Inside the computer bag were a small L-shaped pry bar and cable cutters. Okler identified defendant at trial as the man he had confronted that day.
Defendant flew from Honolulu to Los Angeles on November 29, 2001, and from Los Angeles to San Francisco on November 30, 2001, and he used a credit card to pay for the flights.
Counts 11 and 12
Maria Lazarte, a systems administrator for SGI in Mountain View, found on Monday, August 12, 2002, that one of her lab doors had been pried open. She also discovered that some equipment had been moved around and boxes had been opened, and that two new CPUs, two graphic boards, and a cart were missing from inside the lab. The total value of the missing items was about $7,100.
One CPU was worth about $1,000, the other about $1,300. The two graphic boards were each worth $2,400.
The SGI security system reported that the building door was forced open at 10:34 a.m. on Saturday, August 10, 2002. The lab door was forced open at 10:44 a.m. The security surveillance video showed an African-American man in a suit and hat in the building. The man had a bag sitting on a metal cart like those in the lab. Mountain View Police Detective Sean Thompson determined from the video that the man was about six feet tall and had a large build. SGI security officers gave Thompson a photograph of an employee named Hancock, but Thompson did not interview Hancock.
A few days earlier, on August 7, 2002, the security system reported that somebody with a terminated badge for Terence Hancock tried to access one of the buildings. Around this time, the security system was reporting a lot of false terminated badge alerts. When Leonel Dijols, a security officer, went to check the building after this alert, he saw an African-American man walking away from the building towards the parking lot. The man was about six feet tall, and weighed about 230 pounds. Dijols asked the man if he needed any help. The man replied negatively, and got into an older purple Corvette. Dijols later learned that the man he spoke to was Bill Plummer, who still works for SGI.
Defendant flew from Los Angeles to Oakland on August 9, 2002, and from Oakland to Los Angeles on August 10, 2002, and he used a credit card to pay for the flights. He rented a vehicle from Avis at Oakland on August 9, 2002, and returned it at 4:49 p.m. on August 10, 2002, and he paid for the rental with a credit card.
Counts 13 and 14
Anoop Rajkumar, a lab administrator for Cisco Systems in San Jose, was notified on Sunday, October 27, 2002, around 7:00 p.m., that some of the Cisco systems were inaccessible. When he arrived at the lab, he found four servers lying on the floor with their tops removed and with some processing and memory parts missing. The value of the missing parts was approximately $80,000. Allied Security surveillance videos showed that an exterior door had been forced open at 10:34 a.m. on Saturday, October 26, 2002, and that an African-American man later left the lab carrying a garbage can. The man was approximately 30 to 40 years old, about 5’7” tall, with a heavy build, wearing a suit, a dark baseball cap and dark shoes, and carrying a laptop bag.
Defendant flew from Honolulu to Los Angeles on October 24, 2002; from Los Angeles to Oakland on October 25, 2002; from Oakland to Los Angeles on October 26, 2002; and from Los Angeles to Honolulu on October 30, 2002. He paid for the flights with a credit card. He rented a vehicle from Avis in Oakland on October 25, 2002, and returned it on October 26, 2002 at 2:57 p.m., and he paid for the rental with the same credit card.
Counts 15 and 16
When Kirk Lim, a senior I.T. specialist with Entrust in Santa Clara, dropped by his lab on Saturday, April 12, 2003, he found one of their carts in the parking lot. He took the cart back inside the building, but did not notice anything missing. On the following Monday, when Lim returned to work, he learned that equipment was missing from the lab. Some servers had been pried opened and parts, including memory components, had been forcibly removed. Thirteen computers were affected and had to be replaced. The value of the missing items was over $84,000. Security surveillance video showed a person entering the building then later exiting the building with the cart, on which were two moving boxes from the lab. Yvonne Sieber, a human resources manager for the office, believed that the man in the video resembled a recently-laid-off employee. Sieber provided the man’s name to the police.
The individual items that they could determine a value for were valued at $6,817; $12,300; $12,300; $12,300; $8,140; $12,300; $4,120; $4,120; and $12,300, respectively. The other items they could not determine a value for.
Defendant flew from Honolulu to Los Angeles on April 3, 2003; from Los Angeles to Oakland on April 4, 2003; from Oakland to Los Angeles on April 5, 2003; from Los Angeles to Oakland on April 11, 2003; from Oakland to Los Angeles on April 12, 2003, and from Los Angeles to Honolulu on April 15, 2003. He paid for the flights with credit cards. He rented a vehicle from Avis at Oakland on April 11, 2003, and returned the vehicle on April 12, 2003, at 2:49 p.m., and he paid for the rental with a credit card.
Counts 17 and 18
Dennis Hughes, a facilities project manager for Portal Software, was called into work on Saturday, April 19, 2003, because the engineering data center had been broken into. Exterior and interior doors had been pried open and six servers worth about $216,000 were missing. The security surveillance video showed a man prying open the doors around 9:15 a.m., and leaving with the servers around 9:35 a.m., on April 19, 2003. Officers found a large shoeprint in the mud outside the exterior door.
Defendant rented a vehicle from Hertz in Oakland on April 18, 2003, and returned it on April 19, 2003, at 3:30 p.m.
Counts 19 and 20
When he arrived at work on Monday, June 16, 2003, Edward Robitaille, facilities manager for Marvell Semiconductor in Sunnyvale, learned that six boxed-up servers valued at about $7,000 were missing from shipping and receiving. Security surveillance videos showed an African-American man, who Robitaille had never seen before and who was wearing a suit and carrying a black bag, walking into the building through the loading dock on the previous Saturday morning and leaving the building with a hand truck loaded with the boxed-up servers. From the videos Robitaille estimated that the man was about 6’1” or 6’2” tall, and weighed 215 to 220 pounds. The videos also showed a light-colored SUV that Robitaille had never seen before leaving the building parking lot shortly after the servers were removed.
Defendant flew from Los Angeles to Oakland on June 13, 2003, and from Oakland to Los Angeles on June 14, 2003, and he paid for the flights with a credit card. He rented a vehicle from Avis in Oakland on June 13, 2003, and returned the vehicle on June 14, 2003 at 3:41 p.m., and he paid for the rental with a credit card.
Count 21
In July 2003, Allied Security provided corporate security for Netscreen in Sunnyvale. On Monday, July 21, 2003, Bryan Wade from Allied Security learned that there had been a break-in at a Netscreen lab during the prior weekend. Wade found that an emergency exit door had been pried open but nothing was missing. Security surveillance videos showed that an African-American man who was over six feet tall and who was wearing a suit and a hat had been in the building around 9:45 a.m. on Saturday, July 19, 2001. The videos also showed the same man walking to a mid-size Buick in the parking lot, and then the Buick leaving after the break-in.
Counts 22 and 23
When Albert Tang, a technical marketing engineer for Cisco in San Jose, arrived at his lab on the morning of Monday, December 22, 2003, he found that two laptop computers and a video camera were missing. The camera was worth between $5,000 and $7,000, and the laptops were each worth about $2,500. Tang contacted security, who determined that an exterior door had been forced open at 10:30 a.m. on Saturday, December 20, 2003, and that interior doors were also forced open. Security surveillance videos showed a man about 6’6” tall inside the building and exiting the building with one or two laptops.
Defendant flew from Los Angeles to Oakland on December 19, 2003, and from Oakland to Los Angeles on December 20, 2003, and he paid for the flights with a credit card. He rented a vehicle from Avis in Oakland on December 19, 2003, and returned the vehicle on December 20, 2003, at 7:29 p.m., and he paid for the rental with the same credit card.
Count 24
Larry Kistler, a hardware instructor at SGI in January 2004, was out of town when he received a call from SGI security telling him that his training lab had been burglarized. When Kistler returned to the lab he found that the double doors to the lab were broken and parts of a mainframe computer were broken, but nothing was missing.
The SGI security system reported that the lab door was forced open at 8:07 a.m. on Saturday, January 24, 2004. A video from the security camera Kistler had installed inside the lab showed a man whom Kistler had never seen before inside the lab at 8:11 a.m. on January 24, 2004. The building security surveillance video showed the man in the lobby walking toward the exit at 8:11 a.m. with nothing in his hands.
Defendant flew from Los Angeles to San Francisco on January 23, 2004, and from San Francisco to Los Angeles on January 24, 2004, and he paid for the flights with a credit card. He rented a vehicle from Avis in San Francisco on January 23, 2004, and returned the vehicle on January 24, 2004, at 5:12 p.m., and he paid for the rental with the same credit card.
Counts 25 and 26
Benchiao Jai, an engineer with Google in Mountain View, discovered on the morning of Monday, March 1, 2004, that one of the Google labs had been broken into. The lock on the lab door was broken and three computer servers, each worth around $2,000, and 200 memory modules from other computers, each worth about $200, had been removed. Jai reported the theft to security. Security officers found that the lock on the building door was broken. Security program logs indicted that the memory modules were removed from the computers at 8:23 a.m. on Saturday, February 28, 2004. A security surveillance video showed a man prying the building door open and later exiting the building through another door carrying a box containing three Google servers. The video also showed a white SUV approaching the building moments before the forced entry and leaving approximately 90 seconds after the man left the building.
Fingerprints taken from the scene were later identified as belonging to Steven Allen Mendoza. Mendoza’s driver’s license printout states that he has brown hair and hazel eyes, is 5’4” tall, and weighs 180 pounds.
Defendant flew from Las Vegas to San Francisco on February 27, 2004, and from San Francisco to Las Vegas on February 28, 2004, and he paid for the flights with a credit card. He rented a vehicle from Avis in San Francisco on February 27, 2004, and returned the vehicle on February 28, 2004, at 1:59 p.m., and he paid for the rental with the same credit card. One-gigabyte memory modules like those taken from Google were found during a search of defendant’s residence shortly after his arrest.
Counts 27 and 28
Gary McLeod, an engineer with Cisco Systems in San Jose, went into work on Saturday, May 1, 2004, around midmorning. When he arrived, he saw a white SUV parked close to an emergency exit. The back door of the SUV was open and an African-American man who was about six feet tall was moving a large box from a lab cart into the back of the SUV. McLeod approached the man and asked him if he could be of some help. The man was so startled that he almost dropped the box. He said that he was almost finished, so McLeod walked back to his car and watched him. The man left the cart in the parking lot and drove off. McLeod wrote down the license plate number of the SUV and sent an email to Cisco investigators about the incident. He identified defendant at trial as the man he saw.
Anthony Poulos, an engineering manager for Cisco Systems in San Jose, was notified that a large server worth about $50,000 was missing from a lab. Security surveillance videos showed a man inside the building on May 1, 2004, at 10:01 a.m. The man loaded a cart and pushed the loaded cart out of the building.
Defendant flew from Las Vegas to San Francisco on April 30, 2004, and from San Francisco to Las Vegas on May 2, 2004, and he paid for the flights with a credit card. He rented a vehicle from Avis in San Francisco on April 30, 2004, and returned it on May 1, 2004, at 7:10 p.m., and he paid for the rental with the same credit card.
Count 29
Elegant Networks is a family-owned business that buys and resells used Cisco network equipment. Between March 30 and April 2, 2004, Dong Nguyen, an employee of Elegant Networks, negotiated to buy some Cisco switches through eBay. The seller used the email address rsoapdish@aol.com. The seller claimed that the switches worked, so Nguyen bought two of them for $3,450. When the switches arrived, they were missing their serial number tags. Nguyen ran a test and determined their serial numbers and also determined that the switches worked. The switches were later turned over to the police. On May 19, 2004, the same seller offered to sell Cisco routers to Elegant Networks. Nguyen never met or talked to the seller.
In early April 2004, Gil Leaño, I.T. manager for Dorado Corporation in San Mateo, learned that nine packaged Cisco switches and routers and the cart that they had been on were missing. Also missing were a couple of laptop computers. Security surveillance videos showed defendant, who did not work for Dorado, removing the cart and equipment on Saturday, March 27, 2004. Leaño provided the serial numbers of the missing parts to the police. Included in the list were the serial numbers for the two Cisco switches Elegant Network bought from rsoapdish@aol.com. The switches were each worth between $3,000 and $4,000.
Defendant flew from Las Vegas to Oakland on March 26, 2004, and from Oakland to Las Vegas by way of Phoenix on March 27, 2004, and he paid for the flights with a credit card. He rented a vehicle from Avis in Oakland on March 26, 2004, and returned the vehicle on March 27, 2004, at 2:52 p.m., and he paid for the rental with the same credit card.
Counts 30 and 31
Portal Software was burglarized a second time on Saturday, August 9, 2003. The same kinds of computer parts that were taken in April 2003 were missing again after this burglary. Perry Zhu, a systems administrator for Portal, determined that the value of the items taken this time was about $155,000. Security surveillance video showed the same man as before forcing entry around 9:03 a.m. and exiting through the same back door around 9:05 a.m.
The first burglary, in April 2003, was the subject of counts 17 and 18.
Defendant flew from Los Angeles to Oakland on August 8, 2003, and from Oakland to Los Angeles on August 9, 2003, and he paid for the flights with a credit card. He rented a vehicle from Avis in Oakland on August 8, 2003, and returned the vehicle on August 9, 2003, at 3:50 p.m., and he paid for the rental with the same credit card.
Uncharged Acts
Lester Hellum, a corporate investigator for Sun Microsystems, testified that Sun maintains a system to track their own and customers’ assets using serial numbers. Detective Alex Bouja gave him a serial number for a Sun blade server, and he determined that the server was shipped May 6, 2003, to a Sun employee in Broomfield, Colorado. Sun has no record of it ever having been resold after that. The Sun blade server with that serial number was found during a search of defendant’s residence after his arrest. Sun computer memory chips were found in defendant’s car during the same search. Around 7:30 a.m. on Saturday, May 17, 2003, the Sun security system for their Broomfield campus indicated that both an exterior door to one of their buildings and an interior door to a lab had been forced open. David King, a security officer, entered the building and found a large African-American man inside whom he did not recognize. The man was wearing a coat, tie, hat and gloves, and was not wearing an employee badge. King asked to see the man’s badge, and the man said that it was in his vehicle. The man gave him a name but left while King was calling in to verify the information. Defendant flew from Los Angeles to Denver on May 16, 2003, and from Denver to Los Angeles on May 17, 2003, and he paid for the flights with a credit card. He rented a vehicle from Avis in Denver on May 16, 2003, and returned it on May 17, 2003, at 2:04 p.m., and he paid for the rental with the same credit card.
On Monday, December 22, 2003, employees of Siebel Systems in Emeryville reported to their security contractor that there had been a burglary at their site. Some items had been moved and damaged and a number of laptop computers were missing. Daniel Ruiz, an employee of the security contractor, reviewed the security surveillance videos and saw an unauthorized person enter the building through the receiving dock at 9:25 a.m. on Saturday, December 20, 2003, with a laptop bag, and exit the building with a Seibel equipment case at 9:35 a.m. The property tag for a laptop computer stolen during this burglary was found during a search of defendant’s residence after his arrest.
On Monday, January 26, 2004, Siebel reported to the same security contractor that there had been a burglary at one building at their San Mateo site. Ruiz reviewed the security videos from that site and did not see any unauthorized entries into that building because the building’s security camera was not working. Ruiz did see a man who appeared similar to the man in the December 2003 Emeryville videos attempting to enter a second building at the San Mateo site through the loading dock at 11:18 a.m. on Saturday, January 24, 2004.
Jason Sousley, an investigator with Cisco Systems in Pleasanton, was notified on Saturday, May 15, 2004, at approximately 12:15 p.m., of a break-in there. He determined that several doors had been pried open and several items, including two servers, were missing, and that one glove had been left behind. Security surveillance videos showed a man rolling a loaded Cisco cart out of the building, and a pickup truck exiting the parking lot shortly thereafter with items in the bed of the truck. Defendant flew from Las Vegas to Oakland on May 14, 2004, and from Oakland to Las Vegas on May 15, 2004, and he paid for the flights with a credit card. He rented a Ford F-150 pickup truck from Hertz in Oakland on May 14, 2004, and returned the truck on May 15, 2004, at 4:44 p.m. The truck defendant rented looked like the one in the Cisco security video.
Detective Bouja testified that he looked into additional flights taken by defendant and additional burglaries outside Santa Clara County. He became aware of a similar suspected burglary at Oracle in Colorado Springs on February 3, 2001. Defendant flew from Los Angeles to Denver on February 2, 2001, and from Denver to Los Angeles on February 3, 2001, and he paid for the flights with cash. A similar suspected burglary occurred at Sun Microsystems in Newark, California, on August 17, 2002. Defendant flew from Los Angeles to Oakland on August 16, 2002, and from Oakland to Los Angeles on August 17, 2002, and he paid for the flights with cash. A similar suspected burglary occurred at Open Wave in Redwood City on May 3, 2003. Defendant flew from Los Angeles to San Francisco by way of Las Vegas on May 2, 2003, and from San Francisco to Los Angeles by way of Las Vegas on May 3, 2003, and he paid for the flights with a credit card.
Other Evidence
Patrick Dean, who works on and builds computers as a hobby, bought two memory chips through eBay in March 2004 from a seller who had 40 or 50 chips for sale. The chips did not work well so Dean resold them through eBay. About three weeks later, the woman he sold them to contacted him and he told her who he had bought them from.
Patrick Murphy, a botanist, bought some memory chips over eBay in March 2004, from a seller who used the email address rsoapdish@aol.com. When the first chip arrived, it did not work, so Murphy contacted the seller again. He mailed back the first chip and the seller sent a second one that did not work either. Murphy tried to resell the second chip, but had to buy it back because it did not work for the new buyer either. He gave the second chip, the envelope in which he received it from the seller, and copies of his emails to the police. The emails said that the payment address for the seller was “Howard Young” in Los Angeles, and the return address on the envelope says “H. Young” in Las Vegas, Nevada. The invoice says, “ ‘Thank you again for your purchase. Bro.h.’ ”
Verta Tannehill, who was building a desktop computer, bought two chips over eBay in March 2004 from Patrick Dean. The chips did not work so she contacted the manufacturer, who informed her that they might be stolen. Tannehill then contacted Dean and other buyers of similar chips to find out where they got the chips. She traced sales back to somebody who used the eBay screen name “bro.h.” She contacted “bro.h,” asking to buy more chips and also asking where he got the chips. The responses she received on April 13, 2004, were from rsoapdish@aol.com. She gave the two chips she bought and copies of her emails to the police.
EBay fraud investigators determined that defendant registered the screen name of “bro.h” and the email address of rsoapdish@aol.com with them. At the time defendant registered with eBay, he gave them a Pearl City, Hawaii address.
Defendant was arrested at the San Francisco airport on May 28, 2004. Defendant had a black baseball cap and credit cards in his name on his person; some suits, four pairs of brown gloves, computer chips, receipts, emails to rsoapdish@aol.com, bolt cutters, a wrench, and a Hawaii license plate inside his suitcases; and a laptop computer, receipts, and various other papers inside a black laptop case. One of the receipts defendant had was for a storage locker that had been rented in Oakland on May 15, 2004. A second receipt was a FedEx shipping receipt from defendant with a Hollywood, California address to Elegant Networks in San Jose, and with a delivery date of April 5, 2004. A third receipt was a Delta shipping receipt dated March 27, 2004, for eight computers from the San Francisco airport to defendant at a Hollywood, California address. A fourth receipt was for an Avis car rental at the San Francisco airport, out on February 27, 2004, and returned on February 28, 2004.
Officers searched the Oakland storage locker pursuant to a search warrant. There officers found a large cement pump and a chrome luggage cart. The man in the security surveillance videos from Cisco in Pleasanton on March 15, 2004, was using a similar luggage cart.
During a search of defendant’s Las Vegas residence, Detective Bouja found in the garage a large, hard-plastic case like those often used to ship large computer components. A property tag from Seibel Systems was affixed to the case, and Seibel records indicated that the property tag was for a laptop computer that had been stolen from their Emeryville location. Bouja found a laptop computer inside a black bag sitting on a shelf of an entertainment center, and a Sun blade server inside the residence. Bouja gave the serial number of the Sun blade server to Lester Hellum at Sun in order to determine if the server was stolen property. Inside the residence Bouja also found emails to Bro.h and rsoapdish@aol.com relating to one-gigabyte memory modules like those stolen from Google, and brown cloth gloves. Inside a vehicle parked in the driveway of the residence were a few Sun memory chips.
Defendant testified in his own behalf. He admitted that he was convicted of three counts of second degree burglary in 1990, and that he pleaded guilty to kidnapping in 1992, but testified that he has not been convicted of a felony since then. He is married and has three children. He is 6’7” tall and weighs 265 pounds.
Defendant testified that he is the owner-operator of a business that does carpet cleaning, mold remediation, parking lot cleaning, and grease and septic tank pumping. His business is listed with the websites “Blacks in Vegas,” and Pumper.com, and is a member of the International Institute of Cleaning Restoration Certification. His business base is Las Vegas, but he does not have a business license or a contractor’s license there and he does work in a variety of places. He could not produce a customer list or cancelled checks used for business supplies. He recently purchased the cement pump officers found in his storage unit in Oakland, because he wanted to expand his business. When he was arrested in San Francisco, he had bolt cutters with him that he expected to use to cut the lock off his storage unit. He had lost the keys to the lock but he wanted to pick up the cement pump on this trip.
Defendant also buys and sells items, including used computer parts, on eBay, as “Bro.h” and rsoapdish@aol.com. Some of the items he buys he uses in his business, other items he resells. He travels on weekends to pick up his purchases because he runs his business during the week. He never traveled to Santa Clara County, or visited the computer firms who were the victims of the burglaries at issue here. He usually bought computer parts from his friend Charles Brown or from Cleveland Beasley in San Francisco, and he paid for them with cash. Whenever he thought that the items he bought were stolen, he called or emailed the manufacturer with the serial numbers.
The Verdicts and Sentencing
On April 11, 2006, the prosecutor dismissed the burglary charges in counts 6 and 7, and amended count 16 to allege a taking in excess of $50,000 rather than $150,000. On April 14, 2006, the jury found defendant guilty of all remaining counts, and found the excess taking allegations as to counts 14, 16, 18 and 31 to be true. Following a bifurcated trial, the jury found true the allegation that defendant had a prior serious felony conviction for kidnapping that qualified as a strike. (§ 1170.12.) On September 22, 2006, the court denied defendant’s Romero motion and sentenced him to state prison for 30 years, eight months.
DISCUSSION
Uncharged Acts
Defendant first contends that the trial court violated his rights to due process and a fair trial by admitting over his Evidence Code sections 1101, subdivision (b), and 352 objection, evidence of four uncharged burglaries: (1) at Cisco in Pleasanton on May 15, 2004; (2) at Siebel in San Mateo on January 24, 2004; (3) at Siebel in Emeryville on December 20, 2003; and (4) at Sun in Bloomfield, Colorado, on May 17, 2003. He argues the evidence was inadmissible pursuant to Evidence Code sections 1101, subdivision (b), and 352 on the issues of identity and common plan because the burglaries were not distinctive, the evidence took substantial jury time, and he did not suffer any convictions as a result of the burglaries.
Under Evidence Code section 1101, subdivision (b), evidence of uncharged acts by the defendant is admissible to prove any issue in dispute, including identity or common design or plan, but not criminal disposition. (People v. Ewoldt (1994) 7 Cal.4th 380, 393; People v. Lewis (2001) 25 Cal.4th 610, 636-637 (Lewis).) In establishing a common design or plan, the evidence of uncharged acts “must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402.) “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Id. at p. 403.) To prove identity, however, “[t]he greatest degree of similarity is required.” (Ibid.) “[T]he uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Ibid.; see also, People v. Kipp (1998) 18 Cal.4th 349, 369-370 (Kipp).)
The court may exclude evidence of uncharged acts under Evidence Code section 352 if its probative value is substantially outweighed by an undue prejudicial effect or if its admission will necessitate undue consumption of time. On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. (Kipp, supra, 18 Cal.4th at p. 369; Lewis, supra, 25 Cal.4th at p. 637.)
The uncharged burglaries were relevant here to show common design or plan and identity when taken in connection with evidence of the charged burglaries. Evidence of the charged burglaries showed that defendant repeatedly flew into the Bay Area on a Friday, rented a vehicle and, before returning the vehicle on Saturday, gained unauthorized entry into a closed computer company in Santa Clara County while wearing a suit, hat, and gloves, and stole computers and computer parts, some of which he sold on eBay. Defendant was identified at trial by two witnesses as the man they saw outside burglarized businesses at the time those businesses were burglarized. When defendant was arrested he had suits, gloves, a cap, bolt cutters, a wrench, and paperwork related to his travel and sales on eBay with him, and computer parts at his home like those stolen during some charged burglaries.
The four uncharged burglaries at issue here were relevant to the extent they were substantially similar to the charged burglaries. (People v. Rivera (1985) 41 Cal.3d 388, 392-393.) The uncharged burglaries occurred at computer companies on Saturdays when the businesses were closed, after defendant had flown into an area airport and rented a vehicle but before the vehicle was returned. Computers and computer parts were taken during the burglaries, and security surveillance videos showed that the burglaries involved the unauthorized entry of an African-American man wearing a coat, hat and gloves. In addition, defendant had computer parts at his home shortly after his arrest that were taken during some of the uncharged burglaries.
The trial court found that “the characteristics common in both the charged and uncharged act[s] are substantial and distinctive,” and that “the evidence regarding these uncharged acts is material to the issues of identity and common plan.” The court further found “[w]ith respect to the [Evidence Code section] 352 analysis,” “that the probative value of the evidence regarding these uncharged acts is not substantially outweighed by the prejudicial effect. The jury will already hear about more than a dozen commercial burglaries. . . . [¶] Therefore, the evidence regarding these four additional uncharged acts would not be prejudicial and would be highly probative. It will not take an undue consumption of time.” Moreover, during trial and at the prosecutor’s request, the court instructed the jury on the limited purpose of the uncharged acts evidence each time a witness testified regarding that evidence.
We agree with the trial court that the evidence was highly probative and that it did not take an undue consumption of time given the 16 charged burglaries. That defendant had not suffered convictions based on the uncharged acts was only one factor for the trial court to consider in assessing prejudice. “ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ [Citations.]” (People v. Zapien (1993) 4 Cal.4th 929, 958.)
We find that the trial court did not abuse its discretion in admitting the evidence of the four uncharged burglaries on the issues of common design or plan and identity. Accordingly, defendant has not shown that he was denied due process or a fair trial. (See Estelle v. McGuire (1991) 502 U.S. 62, 68-72.)
Defendant further contends that the court’s admission of hearsay evidence of three additional uncharged burglaries violated his rights to confrontation and to a fair trial, and that his counsel rendered ineffective assistance by failing to object to the evidence on these grounds. The burglaries were: (1) at Oracle in Colorado Springs on February 3, 2001; (2) at Sun in Newark on August 17, 2002; and (3) at Open Wave in Redwood City on May 3, 2003. Defendant argues that the admission of evidence of these burglaries based on the hearsay evidence of police reports was prejudicial because it suggested defendant committed additional burglaries based only on his flights to the areas where the burglaries occurred.
Prior to defendant’s testimony, Detective Bouja testified during his cross-examination that defendant’s airline flight records showed that he had taken flights other than those that coincided with the charged counts. Outside the presence of the jury, the prosecutor sought to rebut that testimony by introducing additional flight records which coincided with three similar out-of-county burglaries. The prosecutor argued that defendant had been charged with those burglaries and that he would be facing those charges after this trial. Defense counsel opposed the request on Evidence Code section 352 grounds, arguing that the evidence was prejudicial because it suggested based only on defendant’s flight records that he committed additional burglaries. Defense counsel did not contend that admission of the evidence would violate defendant’s rights to confrontation and to a fair trial. The court ruled that “it’s an appropriate area to allow the People to go into. I think it’s an area that you questioned the detective, and I think the People have a right to follow-up.” Detective Bouja testified to the three out-of-county burglaries during redirect questioning, and defense counsel cross-examined the detective about this testimony during recross-examination.
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
“ ‘Whether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.’ [Citation.] ‘Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. . . . A reviewing court will not second-guess counsel’s reasonable tactical decisions.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1185.) “ ‘[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings.’ ” (Id. at p. 1197.) Thus, “where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Detective Bouja testified that airline records showed that there were many flights taken by defendant in addition to the ones coinciding with the burglaries in Santa Clara County. Bouja further testified that three of the additional flights coincided with burglaries outside Santa Clara County that were similar to the ones in Santa Clara County. The evidence was presented in an attempt to rebut defendant’s claim that, because he often flew into the Bay Area on weekends to pick up items he had purchased, it was just coincidental that his flights coincided with the Santa Clara County burglaries. Defense counsel was allowed to cross-examine Bouja about what made these three out-of-county burglaries similar to the Santa Clara County burglaries, and Bouja testified that his opinion as to the similarities was based on the police reports regarding the out-of-county burglaries.
We conclude that, even if the evidence of the three additional burglaries had been excluded, there is no reasonable probability that the result of the proceeding would have been different. Detective Bouja’s testimony regarding these three burglaries and defendant’s coinciding flights did not take an undue consumption of time, and the testimony regarding the three additional flights was based on the same records as were the flights coinciding with the Santa Clara County burglaries. In addition, there was overwhelming evidence linking defendant to the numerous Santa Clara County burglaries and thefts. Accordingly, defendant has not shown that he was prejudiced by his counsel’s failure to object to admission of the evidence of the three additional burglaries on the grounds that it would deny defendant his rights to confrontation and a fair trial. (People v. Anderson, supra, 25 Cal.4th at p. 569; Strickland v. Washington, supra, 466 U.S. at pp. 687-688.)
Impeachment with Priors
Defendant contends that the trial court abused its discretion when it allowed the prosecution to impeach him with all four of his prior felony convictions. Three of the prior convictions were for second degree burglary, and the fourth was for kidnapping. Defendant argues that all four of the convictions were remote in time, three were for the same offense as the charged offense, and the fourth was for the very serious offense of kidnapping. He urges this court to find that it would have been sufficient for the trial court to have allowed impeachment with only two of the prior convictions.
Article I, section 28, subdivision (f), of the California Constitution provides in pertinent part that “[a]ny prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding.” (See also, Evid. Code, § 788.) However, a trial court has discretion to exclude a prior felony conviction under Evidence Code section 352 if it finds the probative value of such conviction is substantially outweighed by its prejudicial effect. (People v. Clair (1992) 2 Cal.4th 629, 654.) “The rule is settled that the trial court’s discretion to exclude or admit relevant evidence under Evidence Code section 352 ‘is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.’ [Citation.]” (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532; see also, People v. Ballard (1993) 13 Cal.App.4th 687, 695.)
In performing an Evidence Code section 352 analysis the trial court is to consider the following factors: (1) whether the prior conviction “ ‘rest[s] on dishonest conduct’ ”; (2) the “ ‘nearness or remoteness of the prior conviction’ ”; (3) whether the “ ‘prior conviction is for the same or substantially similar conduct for which the accused is on trial’ ”; and (4) “ ‘what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions.’ ” (People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle).)
First, we disagree with defendant’s assertion that the remoteness of his priors favored their exclusion. Cases have concluded that convictions of up to 20 years, while remote, may have probative value for impeachment purposes. (See e.g., People v. Massey (1987) 192 Cal.App.3d 819, 825; People v. Burns (1987) 189 Cal.App.3d 734, 737-738.) Here, defendant’s most recent prior conviction was in 1992, he was sentenced to prison as a result of the conviction, he was released on parole in 1993, and the conduct underlying the charged offenses began in 2001.
Also, “[t]here is no steadfast rule regarding the precise number of prior convictions which may be admitted in a particular case. ‘[W]hether or not more than one prior felony should be admitted is simply one of the factors which must be weighed against the danger of prejudice. [Citation.]’ [Citation.] [¶] Prior convictions for the identical offense are not automatically excluded. ‘The identity or similarity of current and impeaching offenses is just one fact to be considered by the trial court in exercising its discretion.’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 183 (Green).) In Green, where the defendant was charged with unlawful vehicle taking (Veh. Code, § 10851, subd. (a)), the appellate court held that it would not be an abuse of discretion to allow the prosecution to impeach the defendant with six prior auto theft convictions, reasoning that “a series of crimes may be more probative than a single crime.” (Green, supra, 34 Cal.App.4th at p. 183.) Here, the trial court properly found that to preclude the prosecution from impeaching defendant with his three prior second degree burglary convictions along with his prior kidnapping conviction would have given defendant a “false aura of veracity.” (People v. Beagle, supra, 6 Cal.3d at p. 453.) We will not disturb the trial court’s exercise of discretion in this case.
CALCRIM No. 375
Defendant contends that the trial court erred by instructing the jury pursuant to CALCRIM No. 375 that the prosecution’s burden of proving the uncharged offenses was by a preponderance of the evidence. Defendant argues that the instruction is constitutionality defective in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), in that it allowed the jury to find that he is the person who committed the charged offenses using a standard of proof lower than beyond a reasonable doubt.
The court instructed the jury pursuant to CALCRIM No. 375 as follows: “The People presented evidence that the defendant committed other offenses that were not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses/acts. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses/acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant was the person who committed the offenses alleged in this case. [¶] The defendant had a plan or scheme to commit the offenses alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses or acts and the charged offenses. [¶] Do not consider this evidence for any other purpose except for the limited purpose of identity and common plan. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt.”
Defendant acknowledges that our Supreme Court has rejected a similar argument regarding CALJIC No. 2.50.1. (See People v. Medina (1995) 11 Cal.4th 694, 762-764 (Medina); People v. Carpenter (1997) 15 Cal.4th 312, 380-383 (Carpenter).) In Medina, the court held that CALJIC No. 2.50.1 is a correct statement of the law. “[T]he facts tending to prove the defendant’s other crimes for purposes of establishing his criminal knowledge or intent are deemed mere ‘evidentiary facts’ that need not be proved beyond a reasonable doubt as long a the jury is convinced, beyond such doubt, of the truth of the ‘ultimate fact’ of the defendant’s knowledge or intent. [Citation.]” (Medina, supra, 11 Cal.4th at p. 763.) In Carpenter, after discussing the conflicting authority on the issue of the standard of proof for other crimes evidence, including Medina, the court stated that it would “adhere to the preponderance standard and disapprove any language suggesting the clear and convincing evidence standard.” (Carpenter, supra, 15 Cal.4th at p. 382.)
The version of CALJIC No. 2.50.1 considered in Medina is similar in all material respects to CALCRIM No. 375 as given here in its explanation of the burden of proof. There is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that defendant was the person who committed the offenses alleged in this case and/or that defendant had a plan or scheme to commit the offenses alleged. CALCRIM No. 375 cautions the jury that it is not required to draw these conclusions and, in any event, that such a conclusion is insufficient, alone, to support a conviction. Based on Medina and Carpenter, we therefore reject defendant’s contention that CALCRIM No. 375 violated his due process rights. (Cf. People v. Cromp (2007) 153 Cal.App.4th 476, 480; see also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Cumulative Error
Defendant contends that the cumulative effect of the above errors so infected the trial with unfairness as to make his conviction a denial of due process. Our Supreme Court has recognized that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) However, as we discussed above, we find that the trial court did not err or abuse its discretion in admitting evidence of uncharged acts, in allowing impeachment of defendant with his prior convictions, or in instructing the jury. Further, we find that defendant was not prejudiced by any alleged ineffective assistance of counsel and that no cumulative error has been shown.
Sentencing Error
At sentencing, the court chose count 16 (grand theft, §§ 484, 487, subd. (a)) as the principal term, and imposed the upper term of six years, which was doubled pursuant to the Three Strikes law (§ 1170.12). The court stated that it chose the upper term “[b]ecause of the defendant’s extensive criminal history, the prolonged scope of the instant three-year crime spree, and the [manner] in which these crimes were carried out, which indicates extensive planning and sophistication; moreover, items of great monetary value were taken.” The probation report states that defendant’s prior criminal history includes three convictions for second degree burglary, and one conviction each for kidnapping, intimidation of a witness, assault with a deadly weapon, and possession of an unlicensed firearm. Defendant was sentenced to state prison in 1992 for the kidnapping and burglary convictions. In addition, defendant has outstanding warrants for burglary charges in San Mateo and Alameda counties.
Defendant contends that the imposition of the upper term violated the federal Constitution because the court relied on factors not found true beyond a reasonable doubt by a jury. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi); Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely); Cunningham, supra, 127 S.Ct. at p. 868.)
In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) The Blakely court further considered the issue and determined that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the court concluded that under California’s determinate sentencing law the middle term is the “statutory maximum” for Apprendi purposes. (Cunningham, supra, 127 S.Ct. at p. 868.) The court held that, by allowing imposition of an upper term sentence based on aggravating circumstances found solely by the judge, California’s determinate sentencing law “violates Apprendi’s bright-line rule” (ibid.), and that the upper term may be imposed only if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, 127 S.Ct. at p. 871.)
Subsequent to Cunningham, in People v. Black (2007) 41 Cal.4th 799, at page 816, our Supreme Court held 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 convictions.” In imposing the upper term in the case before us, the trial court relied in part on defendant’s “extensive criminal history.” In addition to the prior kidnapping conviction that was used to double defendant’s sentence under the Three Strikes law, defendant had three prior second degree burglary convictions as well as convictions for intimidation of a witness, assault with a deadly weapon, and possession of an unlicensed firearm. Thus, this case falls under the “prior conviction” exception recognized in Apprendi, Blakely, and Cunningham. (People v. Black, supra, 41 Cal.4th at p. 818; see also, People v. Thomas (2001) 91 Cal.App.4th 212, 216-223; Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at p. 868.)
The prior conviction exception derives from the United States Supreme Court’s opinion in Almendarez-Torres v. United States (1998) 523 U.S. 224. In that case, the court concluded that the fact of a prior conviction was not an element of the charged offense and, thus, need not be charged in the indictment even though it may be used to increase the defendant’s maximum penalty. (Id. at pp. 226-227, 240-247.) At this time, Almendarez-Torres is controlling law and this court is bound by it. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Therefore, we find that defendant’s right to a jury trial was not violated by the trial court’s imposition of the upper term sentence in this case. (People v. Black, supra, 41 Cal.4th at pp. 816, 820.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.