P. v. Corrales

Filed 8/9/07 P. v. Corrales CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Richard J. Oberholzer, Judge.

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Enrique Acosta Corrales appeals from a judgment of life in prison, plus 24 years, for unpremeditated attempted murder of and assault with a semiautomatic firearm on police officers. He contends that the trial court erred in instructing the jury and in sentencing him. We affirm.

STATEMENT OF THE CASE

On January 20, 2006, the Kern County District Attorney filed a five-count information charging Corrales with the premeditated and willful attempted murder of two police officers (Pen. Code, 187, 189, 664, subd. (e))^[1](counts 1 & 2), assault with a semiautomatic firearm on the same two police officers ( 245, subd. (d)(2)) (counts 3 & 4), and felony reckless vehicle evasion (Veh. Code, 2800.2) (count 5). As to counts 1 through 4, the information alleged Corrales intentionally and personally discharged a firearm in the commission of the offenses ( 12022.53, subd. (c)). As to all counts, it alleged Corrales had served a prior prison term ( 667.5, subd. (b)).

On January 23, 2006, Corrales entered a plea of not guilty and denied all allegations.

On May 15, 2006, the bifurcated jury trial commenced and culminated on May 19, 2006 when the jury found Corrales guilty of unpremeditated attempted murder on count 1, not guilty on count 2, and guilty on counts 3 through 5. The jury found true that Corrales personally and intentionally used a firearm on counts 1, 3, and 4, and that he knew the victim in count 1 was a police officer.

On May 22, 2006, the trial court found the prior prison term allegation true.

On June 20, 2006, at the sentencing hearing, the trial court also found the following aggravating factors: (1) Corrales was on parole when the crime was committed; (2) Corrales was engaged in violent conduct which indicates a serious danger to society; and (3) he has a prior felony conviction for which he has been sentenced to prison. The trial court found no mitigating factors.

The court sentenced Corrales to a prison term of life plus 24 years calculated as follows: life, plus 20 years for the firearm allegation, plus one year for the prison term allegation; count 3: the upper term of nine years, plus 20 years for the firearm allegation, stayed pursuant to section 654^[2]; count 4: one-third the middle-term of seven years, or two years, and four months, consecutive; and count 5: eight months, consecutive.

On June 21, 2006, Corrales filed his notice of appeal.

STATEMENT OF THE FACTS

During the late evening of November 27, 2005, City of Delano Police Officer Jesus Navarrete saw Corrales drive through a four-way stop in the wrong traffic lane. Corrales drove towards the officers marked patrol car, causing the officer to have to swerve to avoid a collision. The officer made a U-turn and activated his overhead emergency lights in an attempt to stop appellant. Corrales stopped his car for a few seconds in the middle of the road, then sped away. The officer activated his siren and pursued.

During the pursuit, Corrales drove 60 to 65 miles an hour although the speed limit in that zone was 45 miles per hour. About four or five blocks later, Corrales turned into a residential area and slowed to about 30 miles per hour. He then turned off his headlights. He drove about four blocks driving through a posted stop sign at an intersection. Corrales then made a left turn and veered to the side of the road, hitting the curb. He veered into the street and continued driving, failing to stop at another stop sign. Corrales turned again, but veered into the sidewalk where his car became disabled. The distance of the chase was 10 to 12 city blocks.

Officer Navarrete parked behind Corraless disabled car and stepped out of his patrol car with his firearm drawn. Officer Richard Stites arrived on scene in his marked patrol car to assist Officer Navarrete. Corrales stepped out of his car with a gun in his right hand. He elevated and pointed the gun at Officer Navarrete. The officer saw a muzzle flash and heard three or four gun shots. Officer Navarrete returned about five to seven gun shots as he backpedaled to the rear of his patrol car.

Officer Navarrete took cover behind the back of his patrol car. The officer saw Corrales run towards Officer Sitess patrol car and point the handgun into the passenger compartment of the car. Officer Navarrete did not fire at Corrales because he did not know whether Officer Stites was still in the car. Officer Navarrete heard two shots fired and then observed Corrales running down the middle of the street. Officer Navarrete began running after Corrales. Corrales stopped and turned toward the officer with the gun in his hand. Officer Navarrete fired about six rounds at Corrales as Corrales began running again.

Corrales ran about 50 to 75 feet and then collapsed forward, in a prone position. Officer Navarrete approached Corrales with his gun drawn, but the officer could not see appellants right arm. As he approached Corrales, Corrales turned on his side, raised his gun toward the officer, and fired two or three shots. The officer backpedaled as he shot back at Corrales about three more times, emptying his magazine. Officer Navarrete heard Officer Stites yelling Take cover. Take cover. Officer Navarrete then heard another volley of two or three gunshots.

Officer Navarrete took cover behind a parked truck in a driveway. He reloaded his gun and peered over the truck. From a distance of about 30 to 35 feet, he saw Corrales lying on his back in the street holding the gun with his elevated and extended arm. Corrales was moving the gun from side to side scanning the area. Officer Navarrete fired four or five more shots at appellant.

After he stopped firing, Officer Navarrete observed that Corrales had dropped the gun. Officers Navarrete and Stites then approached appellant and ordered Corrales not to reach for his gun. Officer Stites kicked the gun away from Corraless hand and called for an ambulance. Corrales was still conscious and moving.

Officer Stites provided corroborating testimony. Officer Stites testified that, as he arrived to assist Officer Navarrete with the car pursuit, he saw Corrales hit the curb and the cars airbags deploy. Corrales exited the car a couple of seconds later and began firing a gun at Officer Navarrete. Officer Stites heard two or three shots and he saw the guns slide pull back as Corrales fired. The officer saw Officer Navarrete return fire while running backward.

Officer Stites was just exiting his car when Corrales then turned towards him and pointed the gun at him. The officer dove back into his car. Corrales then approached the drivers side of Officer Stitess patrol car. Corrales walked toward the drivers side door where Officer Stites and appellant made eye contact. Corrales raised the gun and pointed it at Officer Stitess face. Officer Stites fired his gun about three or four times. Corrales then ran northbound on the street.

Officer Stites stepped out of his patrol car and began chasing appellant. Officer Stites stopped and aimed his gun at Corrales as Corrales looked over his left shoulder and pointed the gun with his right hand in Officer Navarretes direction. Officer Stites fired at Corrales three times. Corrales continued running, but again stopped and looked over his left shoulder and raised the gun towards Officer Navarrete. Officer Stites fired about three more shots at Corrales. Corrales then fell to the ground.

Officer Stites yelled for Officer Navarrete to take cover because Corrales appeared to focus on Officer Navarrete as appellant raised the gun while lying in the street. After Officer Stites yelled at Officer Navarrete, Corrales focused on Officer Stites. Corrales looked at Officer Stites and the two made eye contact again. Corrales raised the gun toward Officer Stites. Officer Stites ran for cover behind a tree. He heard another volley of gunshot. He looked over and saw Corrales wiggling on the ground reaching for the gun as Officer Navarrete slowly approached appellant. Officer Stites slowly approached Corrales and kicked the gun away from him.

Criminalist Greg Laskowski arrived at the crime scene and collected appellants gun, a Hungarian-made nine-millimeter semiautomatic pistol. The guns slide was partially retracted back with a live round jammed in the chamber. Laskowski noted another live round was loose beneath the slide, outside of the magazine. The gun had two more live rounds in its magazine. He collected five spent nine-millimeter casings, four outside of appellants car and one in it. Laskowski noted that two nearby cars were struck with nine-millimeter bullets.

Dr. Pete Meade performed surgery on Corrales at Kern Medical Center. Corrales sustained multiple gunshot wounds to his torso, left thigh, right flank, and right hand. The doctor observed signs of alcohol intoxication in appellant. A toxicology report revealed Corrales had a .22 blood alcohol level.

An emergency medical technician (EMT) who transported appellant to the hospital noted Corrales appeared to have consumed alcohol due to his red eyes and an odor of alcohol on his breath and person. The EMT could not communicate with appellant because Corrales only spoke Spanish and he had a slightly altered level of consciousness.

District Attorney Investigator Charles Brown interviewed both Officers Navarrete and Stites after the shooting. Officer Navarrete told Investigator Brown that Corrales had shot at him while running down the street and while Corrales was lying on the road. Officer Navarrete also told the investigator that Corrales initially fired three or four shots and he returned fire, shooting six or seven rounds at Corrales. Officer Stites told Investigator Brown that he was unsure whether Corrales actually fired the gun at him while the officer was lying inside his patrol car.

At trial, Maria Chaidez testified that Corrales visited her briefly before the shooting at about 6:00 or 7:00 p.m. Corrales was intoxicated so she took his keys so that he would not drive. Corrales took back his keys from her and left after a friend called and asked him to go out drinking.

District Attorney Criminalist Petra Imhoff testified that for purposes of driving under the influence, alcohol impairment can occur between 0.01 and 0.05 blood alcohol concentration. The elements of alcohol impairment include loss of judgment, coordination, and poor reaction time. Mental impairment or disorientation generally occurs above 0.20 blood alcohol content, depending on the drinkers experience. Imhoff did not, however, have the background, education, or experience to qualify her as an expert on the effect of alcohol on a persons ability to form specific intent.

Defense investigator Arnie Rios, a former police officer, testified that one of the uses of a police car spotlight is to provide officer safety in a tactical situation. The light can be used to impair a suspects night vision to gain a position of advantage from the patrol car. Rios opined, based on his law enforcement experience, that generally people between 0.15 and 0.20 blood alcohol content are extremely mentally impaired. On cross-examination, Rios testified that Corraless gun was indeed a semiautomatic nine-millimeter firearm which could hold up to 10 rounds. There was [n]o doubt at all.

Corrales testified at the trial. He stated that on the day of the shooting he was drinking wine and beer all day with a friend. He recalled going to Maria Chaidezs house late in the day and then leaving to drink with a friend. He did not recall the shooting after he woke up in the hospital. Corrales remembered that he was interviewed in Spanish by a police officer while in the hospital. He told the officer he was in pain and could not recall the shooting incident. Corrales also testified that he received the gun earlier in the day from Jose Torrres as payment for a debt.

A recording of Corraless hospital interview was played for the jury. A transcript translating the interview into English was also provided. Corrales denied intending to kill Officers Navarrete and Stites. Corrales testified he was convicted in Kern County in 2004 for possessing methamphetamine for sale. He acknowledged he made a mistake in accepting the gun because he was a convicted felon. On cross-examination, Corrales admitted lying to officers about his name during his hospital interview because he was in the country illegally after he had been deported.

DISCUSSION

I.

CALCRIM Instructions^[3]

On appeal, Corrales raised several issues relating to some of the jury instructions used by the trial court. Specifically, he argues that CALCRIM No. 600 (attempted murder), CALCRIM No. 220 (reasonable doubt), CALCRIM No. 224 (circumstantial evidence). CALCRIM No. 370 (motive), and CALCRIM No. 372 (flight) are constitutionally deficient. He also contends that the trial court erred in defining semiautomatic firearm. We disagree.

When considering a claim that the trial court improperly instructed the jury, a reviewing court must determine whether there is a reasonable likelihood the jury construed or applied the instructions in an objectionable fashion. (People v. Osband (1996) 13 Cal.4th 622, 685-686.) The reviewing court reviews all instructions given, not just the instruction complained of, to determine whether the jury charge as a whole is correct. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1249.)

A.

CALCRIM No. 600 (attempted murder instruction)

Corrales was found guilty of the attempted murder of Officer Navarrete. On appeal, he argues that instructions given to the jury failed to sufficiently identify the elements of attempted murder, and improperly conflated act and mental state so as to invite a guilty verdict without first finding the presence of both elements of the offense.

The trial court gave the following disputed instruction on attempted murder:

The defendant is charged in Counts 1 & 2 with attempted murder.

To prove that the defendant is guilty of attempted murder, the People must prove that:

1. The defendant took at least one direct but ineffective step toward killing another person;

AND

2. The defendant intended to kill that person.

A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his plan into action. A direct step indicates a definite and unambiguous intent to kill (which is called express malice aforethought). It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. Malice aforethought does not require hatred or ill will towards the victim. It is a mental state that must be formed before the act of attempted murder. It does not require deliberation or the passage of any particular period of time.

A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he abandons further efforts to complete the crime, or his attempt fails or is interrupted by someone or something beyond his control. On the other hand, if a person freely and voluntarily abandons his plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder. (CALCRIM No. 600 (2005-2006) (as modified) (italics added).)

Corrales argues that the italicized sentence permitted the jury to conflate act with specific intent, although the law requires separate findings of act and specific intent. We disagree. When viewed in light of the entire jury instruction, as well as in the context of the other instructions given by the trial court, no reasonable jury would have conflated act and specific intent.

CALCRIM No. 600 properly instructed the jury that the elements of attempted murder are: (1) a direct but ineffectual act done towards killing another human being; and (2) express malice aforethought, namely a specific intent to kill unlawfully another human being. (People v. Swain (1996) 12 Cal.4th 593, 604-605.) CALCRIM No. 600 clearly states that the jury must make both findings. Similarly, the jury was also instructed with CALCRIM No. 252, which provided that a finding of guilt on the attempted murder charge requires proof of the union, or joint operation, of act and wrongful intent and that a person must not only intentionally commit the prohibited act , but must do so with a specific intent or mental state. Thus, a reasonable jury would have understood that it must find both an act and a specific intent.

The part of CALCRIM No. 600 which states that [a] direct step indicates a definite and unambiguous intent to kill does not improperly conflate act and mental state. In People v. Smith (2005) 37 Cal.4th 733, 735-736, the California Supreme Court held that it is well settled that intent to kill or express malice, the mental state required to convict of attempted murder, may in many cases be inferred from the defendants acts and the circumstances of the crime. While Corrales concedes that appellants intent in the case at bench had to be inferred from the circumstances surrounding the incident, he contends that it was improper for the jury to conclude[] that no evidence other than the act was required to prove intent. Corrales, however, is conflating elements of a crime and evidence of those elements. A direct act can be sufficient evidence to support a jury finding of specific intent. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [The act of firing toward a victim at a close, but not point blank, range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill ....]) CALCRIM No. 600 merely states the well-established law that the requisite mental state can be inferred from the direct act when it states that [a] direct step indicates a definite and unambiguous intent to kill. (Italics added.) CALCRIM No. 600 does not state that a direct act is the same thing as an intent to kill, or that once a jury found a direct act, that the jury did not have to find specific intent. Rather, CALCRIM No. 600 and CALCRIM No. 252 made it clear that the jury had to find that Corrales made a direct but ineffectual act towards killing Officer Navarrete and that the act was done with the intent to kill Officer Navarrete. In other words, as used in the instruction, a direct step sufficient to support attempted murder means one that shows a definite and unambiguous intent to kill. Based upon these jury instructions and the record, a reasonable jury could have found that Corrales made a direct but ineffectual act towards killing Officer Navarrete when Corrales pointed his gun and fired at Officer Navarrete, and that there was a specific intent to kill Officer Navarrete based upon the fact that Corrales aimed his gun at Officer Navarrete and fired multiple shots. Therefore, we reject Corraless claim that CALCRIM No. 600 improperly conflates act and mental state.

B.

CALCRIM No. 220 (reasonable doubt instruction)

Corrales also asserts that the trial court improperly instructed the jury on the burden of proof on all the charged offenses because the trial court used CALCRIM No. 220 on reasonable doubt. According to Corrales, CALCRIM No. 220 is constitutionally defective because it removes the ability of the defendant to prove that he is not guilty based upon the lack of evidence about his guilt. We disagree.

The trial court instructed the jury on the standard of reasonable doubt as follows:

The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.

A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. (CALCRIM No. 220 (italics added).)

According to Corrales, the italicized language improperly requires the defendant to persuade the trier of fact of his innocence by evidence presented at trial, and eliminates the doctrine of reasonable doubt due to lack of evidence. We disagree.

First, CALCRIM No. 220 addresses the burden of the prosecution, not of the defendant. Under CALCRIM No. 220, the prosecution must prove beyond a reasonable doubt that the defendant is guilty by evidence that is presented at trial. CALCRIM No. 220 does not impose this same burden on defendant. Thus, under CALCRIM No. 220, a jury can still find the defendant not guilty by insufficient evidence or by lack of evidence. Therefore, we reject Corraless claim that CALCRIM No. 220 is constitutionally defective.

C.

CALCRIM No. 224 (circumstantial evidence instruction)

Next, Corrales contends that the trial court erred in instructing the jury to find Corrales guilty or innocent, because that instruction improperly lowered the prosecutions burden of proof by allowing the jury to find guilt if they believe the defendant is not innocent.

The jury was instructed as follows:

Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt,you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable. (CALCRIM No. 224 (emphasis added).)

Innocence is semantically different from not guilty. (People v. Han (2000) 78 Cal.App.4th 797, 809.) According to Corrales, a criminal defendant need not prove his or her innocence. Rather, it is the burden of the prosecution to prove beyond a reasonable doubt that the defendant is guilty. While there are semantic differences between innocence and not guilty, there was no error in this case because, when read in conjunction with CALCRIM No. 220 on reasonable doubt, CALCRIM No. 224 did not lower the prosecutions burden of proof. The jury was instructed in CALCRIM No. 220 that: A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Thus, CALCRIM No. 220 creates a dichotomy for the jury: guilt or innocence, with innocence being presumed. Thus, any finding other than guilt is automatically a finding of innocence. With CALCRIM No. 220 in mind, CALCRIM No. 224 is not erroneous because if the jury does not find guilt, it must find innocence. Therefore, CALCRIM No. 224 is not constitutionally defective when viewed as a whole and read in conjunction with the reasonable doubt instruction. (See People v. Frye (1998) 18 Cal.4th 894, 958 [Jury instructions that contain the word innocence or innocent do not suggest that defendant has the burden of establishing innocence.])

D.

CALCRIM No. 370 (motive instruction)

Corrales next contends that the trial court erred in using CALCRIM No. 370, the motive instruction, because CALCRIM No. 370 employs erroneous burden shifting language by implying a defense obligation to show the defendant is not guilty. In addition, the instruction allows the jury to find guilt based upon motive, which is not an element of the charged crimes. We disagree.

The trial court gave the following instruction:

The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive.

Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty. (CALCRIM No. 370.)

As given here, CALCRIM No. 370 does not state that motive is an element of any of the charged offenses. Moreover, CALCRIM No. 370 does not state that a defendant had to show the absence of motive. Rather, it merely provides that a jury could consider whether a defendant had a motive in determining whether or not the defendant is guilty. Therefore, CALCIM No. 370 does not shift the burden of proof to a defendant to prove that he is innocent; but, instead, provides that a jury may consider the absence or presence of motive, which is well-established law. (See People v. Cleveland (2004) 32 Cal.4th 704, 750 [rejecting a similar attack on CALJIC No. 2.51, the former motive instruction].)

Further, CALCRIM No. 370 does not instruct that motive alone is sufficient to establish guilt. (See id. [rejecting a similar attack on CALJIC No. 2.51, the former motive instruction]; People v. Snow (2003) 30 Cal.4th 43, 97 [rejecting a similar argument regarding CALJIC No. 2.51, the former motive instruction].) CALCRIM No. 370 does not state that motive is a factor in determining whether defendant is guilty; rather, it provides that motive may be a factor in the determination of guilt.

Thus, we conclude that CALCRIM No. 370 does not improperly shift the burden to defendant to prove absence of motive and it does not allow the jury to find guilt on the basis of motive alone.

E.

CALCRIM No. 372 (flight instruction)

Corrales also contends that the trial court erred in giving a flight instruction for count 5 (evading police officer in violation of Veh. Code, 2800.2) because the instruction failed to require the jury to find the preliminary fact that defendant fled before using the flight as evidence of consciousness of guilt and there was insufficient evidence establishing flight in this case.

The trial court instructed the jury on flight as follows:

If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt.

If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct; however, evidence that the defendant fled or tried to flee cannot prove guilt by itself. (CALCRIM No. 372 (2005-2006) (as modified).)

While it is true that CALCRIM No. 372 does not require the jury to find that the defendant fled, this does not mean that CALCRIM No. 372 assumes that the defendant fled. Rather, CALCRIM No. 372 merely provides that, if the jury concludes that the defendant fled, the significance of such flight (if any) is up to the jury to determine. (See People v. Visciotti (1992) 2 Cal.4th 1, 61-62 [addressing similar challenges to CALJIC No.2.52, the former flight instruction].) Thus, CALCRIM No. 372 should not be given where there are no facts from which a jury may reasonably infer that a defendant fled and the flight reflected a consciousness of guilt. ( 1137.) Here, there is sufficient evidence to support a finding that Corrales fled from police out of a consciousness of guilt. Corrales fled from Officer Navarrete after initially stopping his car in the middle of the road for a few seconds when Officer Navarrete turned on his police sirens. Corrales drove into a residential area and turned off his headlights. The fact that Corrales drove without his headlights at night is sufficient evidence for a jury to infer that Corrales was fleeing from the police and was consciously trying to evade arrest by turning off his headlights. This is sufficient for a jury to reasonably find that Corrales fled because of consciousness of guilt.

Thus, CALCRIM No. 372 is not constitutionally defective by itself, or as given in the circumstances of this case.

F.

Lack of Instruction on Semiautomatic Firearm

Finally, Corrales contends that the trial courts failure to define in its jury instructions the term semiautomatic firearm warrants the reversal his convictions for assault with a semiautomatic weapon in counts 3 and 4.

The trial court instructed the jury with CALCRIM No. 860 which generally defines the elements of section 245, subdivision (d)(2), (assault upon the person or a peace officer or firefighter with a semiautomatic firearm), but did not define the term semiautomatic firearm. We note that semiautomatic firearm is not defined in section 245, and a definition of semiautomatic firearm is not referenced in section 245.

Nevertheless, the failure to instruct on an element of an offense is harmless where it appears beyond a reasonable doubt that the error did not contribute to the jurys verdict. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Flood (1998) 18 Cal.4th 470, 502-504.)

Here, the evidence that Corraless gun was a semiautomatic firearm was overwhelming and uncontested. A criminalist, Gregory Laskowski, twice testified that Corraless gun was a nine-millimeter semiautomatic pistol. Officer Stites testified that during the shooting he saw the slide on Corraless gun move backward. According to Officer Stites, this made the weapon a semiautomatic firearm. Its a semiautomatic. Its sliding backward. Corraless defense investigator, Arnie Rios, who personally inspected the firearm at the police department, testified that it was indeed a semiautomatic. Rios added that there was [n]o doubt at all that Corraless gun was a nine-millimeter semiautomatic firearm.

Because all of the evidence showed the gun was a semiautomatic firearm, the record establishes beyond a reasonable doubt that the instructional error did not contribute to the jurys verdict. Thus, we are satisfied that any instructional error is harmless under the Chapman standard.

II.

Sentencing

Corrales contends that the trial court erred by imposing an upper term in count 3 (assault with a semiautomatic firearm on Officer Navarrete) and consecutive terms in counts 4 (assault with a semiautomatic firearm on Officer Stites) and 5 (evading a police officer) under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and also Cunninghamv. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [127 S.Ct. 856; 2007 WL 135687] (Cunningham).) The People contend that the trial court did not err in imposing the upper term on count 3 because the trial court could make a finding on the prior prison term under the recidivist exception enunciated in Apprendiv. New Jersey (2000) 530 U.S. 466 (Apprendi).^[4] The People also contend that the imposition of consecutive terms do not implicate Blakely or Cunningham. We agree with the People that the sentence can be affirmed.

A.

Upper Term Sentence

Here, the trial court imposed an upper term of nine years plus 20 years for the firearm allegation on count 3, and stayed that sentence pursuant to section 654. The middle-term for count 3 is seven years. ( 245, subd. (d)(2)) At the sentencing hearing, the trial court made the following findings: The Court finds there are no circumstances in mitigation. In aggravation the defendant was on parole when the crime was committed and the defendant engaged in violent conduct which indicates a serious danger to society. The trial court later stated: The Court also notes that he had a prior he has a prior felony conviction for which he has been sentenced to prison. So he should not even had [sic] a weapon in his possession, although he was not charged with that particular crime. At the jury trial, Corrales testified he was convicted in Kern County in 2004 for possessing methamphetamine for sale. He acknowledged he made a mistake in accepting the gun because he was a convicted felon.

In Cunningham, the United States Supreme Court held that Californias Determinate Sentencing Law violates Apprendis bright line rule: Except for 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. [Citation.] (Cunningham, supra, 127 S.Ct. 868; 2007 WL 135687 at p. *11.) However, the Apprendi exception for prior convictions has been broadly interpreted by California courts to apply to facts relating to defendants recidivism. (People v. McGee (2006) 38 Cal.4th 682, 706-707; People v. Thomas (2001) 91 Cal.App.4th 212, 221-223; but see People v. Govan (2007) 150 Cal.App.4th 1015. review granted July 18, 2007, S153330 [holding that post-Cunningham, Apprendi exception is limited to the fact of a prior conviction].)

Thus, while the aggravating factor that defendant posed a serious danger to society is not a proper basis for an upper term under Cunningham, we agree with the case law holding that other two aggravating factors considered by the trial court (defendant was on parole and defendant served a prior prison term) fall within the Apprendi recidivism exception, although we note that this issue is before our Supreme Court. (See People v. Towne, review granted June 18, 2004, S125677, supp. briefing ordered, Feb. 7, 2007 [parties to address the following issue, among others, Do Cunningham v. California, supra, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247 [118 S.Ct. 1219, 140 L.Ed.2d 350], permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury ; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; (California Rules of Court, Rule 4.421, subds. (b)(2)-(b)(5))?].)

In light of the trial courts findings that Corrales served a prior prison term for a felony conviction and that he was on parole when the crime was committed, the trial courts consideration of Corraless danger to society was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24; furthermore, there was no abuse of discretion under People v. Watson (1956) 46 Cal.2d 818, 836. A single factor in aggravation suffices to support imposition of the upper term (People v. Osband, supra, 13 Cal.4th at p. 730); in light of the trial courts comments at sentencing, appellants criminal record, and the lack of any apparent mitigation, the record amply establishes that the trial court would have imposed the upper term even if factors arguably not strictly related to appellants prior conviction had been excluded from consideration.

B.

Sentence of Consecutive Terms

The trial court also sentenced Corrales to two years and fours months, consecutive on count 4 (assault with a semiautomatic firearm on Officer Stites), and eight months, consecutive on count 5 (evading a police officer). Despite Corraless claims, his consecutive terms on counts 4 and 5 do not violate the United States Constitution. The United States Supreme Court has never held imposition of consecutive terms by a trial judge violates the Sixth Amendment. Under section 669, a trial court has discretion to impose terms either consecutively or concurrently. However, this is not the type of judicial fact-finding barred by the Sixth Amendment. (People v. Black (July 19, 2007, S126182) __ Cal.4th __, __ - __ [2007 WL 2050875, *13] [Cunningham does not apply to the decision to impose consecutive terms].)

C.

Calculation Error

Appellants final sentencing contention is that the trial court erred in calculating count 4 by imposing a term of two years and eight months, instead of two years and four months. However, the abstract of judgment reflects a sentence of two years and four months. Thus, there was no error.

DISPOSITION

The judgment is affirmed.

_____________________

Ardaiz, P.J.

WE CONCUR:

_____________________

Cornell, J.

_____________________

Hill, J.

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^[1]All further statutory references are to the Penal Code, unless otherwise stated.

^[2]The imposition of the upper term did not violate the proscription against dual use of facts contained in California Rules of Court, rule 4.420(c), because the trial court did not use the prior prison term allegation to enhance the sentence for count 3.

^[3] Judicial Council of California Criminal Jury Instructions (2006-2007), hereinafter CALCRIM.

^[4]In light of People v. Black (2005) 35 Cal.4th 1238, any objection by appellant at sentencing based on Blakely, Apprendi, or the United States Constitution almost certainly would have been futile. Accordingly, we reject the Peoples claim that appellant waived the issue by failing to object. (See People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.)