P. v. Inman

Filed 8/20/07 P. v. Inman CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yuba)

----

Defendant was convicted by a jury of four counts of assault with a firearm (Pen. Code,  245, subd. (a)(2)) and one count each of assault of a peace officer (id. at  245, subd. (d)(1)), discharge of a firearm at an occupied vehicle (id. at  246), possession of a firearm by a felon (id. at  12021, subd. (a)(1)), possession of ammunition by a person prohibited from owning or possessing a firearm (id. at  12316, subd. (b)(1)), and reckless driving while fleeing a peace officer (Veh. Code,  2800.2). He was acquitted of two other counts of discharging a firearm at an occupied vehicle but, on each count, was convicted of the lesser included offense of negligent discharge of a firearm. (Pen. Code,  246.3.) Finally, defendant was acquitted of attempted murder. (Id. at  664/187, subd. (a).)

Following discharge of the jury, the court found defendant had a prior strike (Pen. Code,  1170.12, subds. (b) and (c)), was convicted of a prior serious felony (id. at  667, subd. (a)), and served a prior prison term (id. at  667.5, subd. (b)).

Defendant was sentenced under the three strikes law to an aggregate, unstayed term in state prison of 54 years. He appeals, contending: (1) the jury was improperly admonished to conceal misconduct; (2) the conviction for assault on a peace officer is not supported by substantial evidence; (3) the jury was improperly instructed on an element of the charge of fleeing a peace officer; (4) the trial court improperly polled the jury; (5) the prior strike finding is not supported by substantial evidence; (6) imposition of the upper term on two of the offenses violated his Sixth Amendment rights; and (7) the abstract of judgment must be corrected. We agree the abstract of judgment must be modified to reflect accurately the sentence imposed by the court but otherwise affirm the judgment.

Facts and Proceedings

At approximately 10:30 p.m. on March 11, 2005, Katie Stockton, her husband, and their two-year-old son (the Stocktons) were traveling north on Marysville Road in Yuba County in their Dodge Neon. Behind them was Katies brother-in-law, Jacob Stockton, in his Toyota pickup.

A gunmetal gray Nissan pulled onto the road in front of the Stocktons and began driving erratically. It slowed down and then speeded up and swerved. Later, the Nissan pulled to the side of the road and let the Stocktons pass. As they did so, Katie Stockton saw defendant in the drivers seat of the Nissan holding up a shotgun and smirking at her.

The Nissan pulled back onto Marysville Road between the Dodge and the Toyota. It began riding the rear of the Dodge and then backing off. The Stocktons pulled over to let the Nissan pass. When the Nissan got back in front, it continued to slow down and speed up. Eventually, the Nissan sped away around a corner and out of the Stocktons sight.

When the Stocktons next saw the Nissan, it had come to a stop in the southbound lane of Marysville Road and was pointing at an angle back toward them with its rear end partially in the northbound lane. There was a cloud of dust around it. The Stocktons thought there had been an accident and slowed down to lend assistance. However, as they got closer and the dust cleared, they saw defendant pointing a gun at them over the hood of the car.

As the Stocktons tried to speed away, they heard the sound of a gunshot.

When Jacob Stockton passed the Nissan, he too saw defendant pointing a gun at him and heard a shot.

After the Stocktons reached home, they called the police and reported the incident. The call was received at 10:47 p.m. Both the Stocktons and Jacob Stockton examined their vehicles and found no gunshot damage.

Deputy Daniel Cross of the Yuba County Sheriffs Department received a call regarding the incident and proceeded to the area where it occurred. He was in uniform and driving a marked police vehicle. He was accompanied by Reserve Deputy Ersel Frailey.

Cross saw a Nissan coming toward him that matched the description he had been given of the suspect vehicle. He turned his patrol car around and followed. After waiting for a safe area to pull the Nissan over, Cross activated the overhead lights on his patrol car. However, instead of slowing down and pulling over, the Nissan sped up. It also swerved across the yellow line onto the opposite lane of traffic. Cross turned on his siren, but the Nissan sped up even more. At 11:01 p.m., Cross reported that he was in pursuit.

When Cross got within 20-25 yards of the Nissan, the driver pointed a gun out the window toward the police car and fired. Cross saw a flash of light and heard what sounded like BBs hitting the windshield of his vehicle. However, none penetrated the glass. Cross slammed on the brakes to put some distance between his patrol car and the Nissan.

Another deputy, Mike Marsh, later joined in the chase with his own marked patrol car.

Cross pursued the Nissan for approximately 28 miles during a period of 30 to 40 minutes. The Nissan continued to swerve into the opposite lane and oncoming cars pulled over to let them pass.

At approximately 11:33 p.m., the Nissan came to a stop against a snow embankment. The driver got out and ran into the woods carrying a shotgun. Deputy Cross took several shots at the driver but missed. After the driver disappeared into the trees, Cross called for him to come out with his hands up.

At approximately 11:39 p.m., defendant yelled that he was coming out and emerged from the woods. He did not have the shotgun and was not wearing a plaid shirt he had on when he ran into the woods. While defendant was being arrested, he said to the officers, You wont believe the kind of day Ive had.

Deputy Frailey searched the woods and found lying in the snow the plaid shirt, the shotgun and two rounds of ammunition. The shotgun had rounds in the chamber and two rounds in the magazine. There were five more rounds in a nylon pouch attached to the stock of the gun. Inside the Nissan, officers found an expended shotgun shell. The officers also examined Deputy Crosss patrol car and found a dent the size of a BB on the drivers side front quarter panel and scrapes on the windshield.

While defendant was being transported to the hospital for a blood draw, he said, It was fun while it lasted.

Discussion

I

Instruction on Receipt of Media Reports

Defendant contends the trial court inadvertently instructed the jury to conceal misconduct, thereby denying him due process. He cites the following admonition prior to opening statements:

Between now and when this trial is over, do me a favor. If you have to look at a local newspaper, and Im including the Sacramento Bee, Appeal-Democrat, have somebody look at it first. If there is something about this case in the newspaper, put it aside. Dont read it. Remember, you can only hear evidence in the courtroom. Sometimes our local radio station and local TV carries reports of what is going on in this county and Sutter County both. If something comes up, turn it off. Dont listen to it. The only thing that happens if you do that is you will end up delaying things once somebody finds out about it. (Italics added.)

Defendant contends the last sentence of the courts admonition implied three things: (1) it is unimportant if the jurors happen to receive media reports about the case; (2) if it is revealed that a juror received a media report about the case, this will only delay the trial, not cause a mistrial; and (3) jurors should make sure that nobody finds out if they receive a media report about the case. Defendant argues that by suggesting no harm will be done if jurors receive media reports about the case, the court increased the likelihood that jurors would read and listen to such reports. Defendant further argues that by informing the jury there will be delays if the court learns they have received media reports, the court decreased the likelihood that such misconduct would be revealed.

Defendant reads much more into the courts admonition than is actually there. Rather than suggesting it is unimportant if the jurors receive media reports about the case, the court told the jurors four times in this short admonition not to listen to media reports. This admonition was repeated two more times during the trial. Soon after the admonition quoted above, the court told the jury: You must not read or listen to any account or discussion of the case reported by any newspaper or news media. The court later said: Please remember to stay away from the news media.

There is also nothing in the admonition that can arguably be read to suggest jurors should conceal the receipt of media information about the case. At most, the admonition suggested the only thing that would happen if media information is received is that the trial will be delayed. However, rather than suggesting the receipt of media reports should be concealed, this suggests such misconduct can safely be revealed because there will be little harm in doing so.

Defendant argues the above admonition is comparable to those found erroneous in People v. Mello (2002) 97 Cal.App.4th 511 (Mello) and People v. Abbaszadeh (2003) 106 Cal.App.4th 642 (Abbaszadeh). It is not.

In Mello, the trial judge instructed the jury as follows: I dont want any racism in my court, which most of you know by now, but I go a little further than that. [] I recognize that most people in todays age dont want to raise their hand and say []I am a bigot[] or []Im a racist[]. So what Im going to do, if any of you have the slightest doubt that you might not, for racial reasons, be able to give this defendant a fair trial, Im going to give you permission to lie. [] I want you to tell me--theres plenty of other reasons, which you as intelligent people know that you can dream up, how you will not--you can get out of sitting here. [] Okay. I want you to come up with something so that you can get out of sitting here. I dont want that issue to raise its head in this courtroom. (Mello, supra, 97 Cal.App.4th at p. 514, italics omitted.)

Not surprisingly, we concluded in Mello the foregoing instruction violated due process. In addition to depriving the defendant of the right to a fair and impartial jury and thereby rendering the trial fundamentally unfair (Mello, supra, 97 Cal.App.4th at p. 516), the instruction invited the jurors to violate their oath and the statutory requirement that they tell the truth during voir dire (id. at p. 517).

In Abbaszadeh, the trial judge instructed the jury as follows: Now, you probably all know that race and nationality have no place in this courtroom. The very integrity of the system that has developed in the last several generations depends on that we keep this social problem at least out of the courtroom. [] Now, obviously being labeled a bigot or a racist, this sort of thing, is insulting to most people. And so its entirely possible that if you harbor these types of feelings that you may not want to raise your hand and basically put a sign on yourself saying: I am a racist, et cetera. [] I dont want somebody who harbors those types of feelings sitting on this jury, for obvious reasons. [] So I would ask that you do whatever you have to do to get off the jury. And its much more important, in my opinion, that you get off the jury, even if, you know, you have to answer my questions in such a way that you get off in some other way, then do it. (Id. at pp. 646-647, italics omitted.)

We found this instruction was essentially the same as that in Mello, and therefore violated due process, as it invited the jurors to lie about their prejudices. We explained: We think the venire indeed understood that [the trial judge] was inviting prospective jurors to do whatever was necessary to get off the jury even if . . . you have to answer my questions in such a way as to get off other than by admitting to harboring racist feelings, i.e., to lie. (Abbaszadeh, supra, 106 Cal.App.4th at p. 647.)

As explained above, the admonition in the present matter did not encourage the jury to lie or conceal misconduct. At most, it misinformed the jurors about the consequences of a violation of their obligation to avoid media reports about the case. There was no denial of due process.

II

Sufficiency of the Evidence--Assault

of a Peace Officer

Defendant contends his conviction on count 2 for assaulting a peace officer must be reversed for insufficient evidence. He argues one element of assault is a present ability to apply physical force to the victim and that element is lacking here because the round he fired at the patrol car was birdshot that could not possibly have penetrated the vehicle and struck the deputy. We reject this contention. As we shall explain, defendants argument is based on a misunderstanding of the present ability element of assault.

In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) Reversal on the basis of insufficient evidence is warranted only where it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

Penal Code section 240 defines assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (Italics added.) Despite the appearance of attempt and violent injury in this statutory definition, assault is not a specific intent crime like attempt (see Pen. Code,  21a) and can be committed where the defendants act causes the least touching. (People v. Colantuono (1994) 7 Cal.4th 206, 218; see id. at pp. 214-215.) Assault requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (People v. Williams (2001) 26 Cal.4th 779, 790.) In order for the act, by its nature, to probably and directly result in the application of physical force against another, the defendant must have the present ability to apply such force. (People v. Wright (1996) 52 Cal.App.4th 203, 209.)

Defendant contends the evidence presented at trial established that it was not possible for the round he fired at the patrol car to have penetrated the vehicle and struck Deputy Cross. Stephen Bentley, a prosecution expert, testified that shotgun shells contain BBs and the number and size of the BBs depends on the type of shell. The smaller the BBs the more each shell contains. Birdshot contains approximately 400 BBs per shell, whereas double aught buck contains an average of nine BBs per shell. Bentley opined that birdshot fired from a shotgun in a vehicle traveling 50 miles per hour at another vehicle 20 to 40 feet behind would at most dent the metal or crack the windshield. It would not penetrate either metal or windshield. Bentley also testified an expended shell found in defendants vehicle after his arrest had contained birdshot. Finally, Deputy Chris Phillips testified that he examined Deputy Crosss patrol vehicle after the incident and found a small dent like a ping on the drivers side front quarter panel of the vehicle about the size of a BB and scrapes on the windshield.

The fact that an expended round of birdshot was found in defendants vehicle after his arrest does not prove it was the round fired at the patrol car. Defendant had fired two other rounds earlier in the evening, although these were fired from outside the vehicle. With one exception, all other rounds of ammunition found in or near the shotgun were double aught buck. The one exception was a slug with a very large lead projectile in it. There was no birdshot.

Nor does the fact that the only damage to the patrol car was a dent and scrapes on the window prove birdshot had been fired. Bentley testified that buckshot would have a greater penetrating power than birdshot, but it depends on the angle at which the BBs hit the vehicle. Deputy Phillips testified he found a dent on the patrol vehicle the size of a BB. However, he did not say how big the BB would have been.

At any rate, assuming defendant fired birdshot at the patrol vehicle, this would not negate the present ability element of assault.

In People v. Valdez (1985) 175 Cal.App.3d 103 (Valdez), the defendant fired three shots in the direction of a cashier who was behind a bulletproof window at a gas station and was convicted of assault with a firearm. The Court of Appeal affirmed, rejecting the defendants contention that the bulletproof barrier prevented him from having the present ability to injure the cashier. The court explained present ability is not synonymous with factual possibility. Factual possibility refers to environmental factors, such as defensive measures taken by the victim or the presence of an impervious barrier, whereas present ability refers to personal attributes of the defendant, i.e., what a given individual has the capacity to do in contrast with those who lack this quality. (Id. at p. 111; see id. at pp. 109-111.)

In reaching this conclusion, the Valdez court relied on the historic distinction between an assault and an attempt to commit a battery. According to the court, [w]ithout the present ability element, every attempt to commit violent injury would be a criminal assault. (Valdez, supra, 175 Cal.App.3d at p. 108.) The court explained: [B]ecause of the present ability element of the offense, to be guilty of assault a defendant must have maneuvered himself into such a location and equipped himself with sufficient means that he appears to be able to strike immediately at his intended victim. (Thus, the emphasis is on the word present as much as the word ability.) The policy justification is apparent. When someone has gone this far he is a greater and more imminent threat to his victim and to the public peace than if he is at an earlier stage of an attempted crime. In contrast, a defendant can be found guilty of an ordinary attempt even if intercepted on his way to a location which would be within striking distance of his intended victim [citation] or while assembling the means to attack this target [citation].

Nothing suggests this present ability element was incorporated into the common law to excuse defendants from the crime of assault where they have acquired the means to inflict serious injury and positioned themselves within striking distance merely because, unknown to them, external circumstances doom their attack to failure. This proposition would make even less sense where a defendant has actually launched his attack--as in the present case--but failed only because of some unforeseen circumstance which made success impossible. Nor have we found any cases under the California law which compel this result. The decisions holding a defendant lacks present ability when he tries to shoot someone with an unloaded gun or a toy pistol do not support any such proposition. In those situations, the defendant has simply failed to equip himself with the personal means to inflict serious injury even if he thought he had. (Valdez, supra, 175 Cal.App.3d at p. 112.)

In People v. Craig (1991) 227 Cal.App.3d 644 (Craig), the court took this one step further and held the defendants awareness of the circumstances that prevent his infliction of injury on the victim is immaterial. The jury there had been instructed: A person may be guilty of committing an assault with a deadly weapon or instrument against the victim even though at the time of the assault the victim is so situated as to have an impervious defense. (Id. at p. 648.) The defendant contended this was erroneous because it failed to inform the jury the impervious defense must have been unknown to the defendant at the time of the assault. (Ibid.) The court disagreed, explaining: A defendants knowledge of circumstances which may prevent injury is simply not relevant if, notwithstanding the circumstances, defendant has the ability to carry out the method of assault chosen. Valdez cannot be read as injecting a requirement that the defendant know the method he or she has chosen will successfully inflict injury. Present ability does not mean certain success. Appellant cites no authority for the proposition that only assaultive behavior with a high probability of success is punishable. Therefore, a defendants knowledge of the probability of success of his or her intended action is not relevant to the jurys deliberation. (Id. at p. 650.)

As the foregoing cases make clear, present ability means no more than the defendant has both the means (an operative, real weapon) and is in a location (within striking distance) to inflict injury on his intended victim. (In re Daniel R. (1993) 20 Cal.App.4th 239, 247.) Both of these requirements are satisfied here. Defendant had an operative shotgun that, at the very least, was loaded with birdshot. As Stephen Bentley testified, birdshot has the capacity to penetrate skin. Defendant was also in a position, within 20 to 25 yards of the patrol car, to inflict injury on the deputy. The only thing that prevented such injury was the intervention of the patrol cars body.

Defendant argues there is no evidence it was probable Deputy Cross would be hit by the birdshot. However, defendant again relies on the intervention of the patrol car in making injury improbable. There can be little question that shooting a loaded firearm in the direction of another has a high probability of inflicting injury absent the intervention of environmental factors outside the defendants control.

Defendant further argues there is no evidence he knew facts sufficient to establish that his acts would probably and directly result in the application of physical force to Deputy Cross. On the contrary, the jury could readily conclude from defendants acts that he expected to injure the deputy when he fired at the patrol car. Defendant was attempting to flee the pursuit and waited until the patrol car got close to open fire.

There is substantial evidence to support defendants conviction for assaulting a peace officer.

III

Instruction on Distinctively Marked Patrol Car

Defendant contends the jury was improperly instructed on the elements of the crime of fleeing a pursuing peace officer (Veh. Code,  2800.2). In particular, defendant takes issue with the courts description of the requirement that the officers vehicle be distinctively marked. We find no instructional error.

Vehicle Code section 2800.2 makes it a crime for a motorist to flee from a pursuing peace officers vehicle in violation of Section 2800.1 and in a willful or wanton disregard for the safety of persons or property. Vehicle Code section 2800.1 makes fleeing a pursuing peace officer a crime if all of the following conditions exist: [] (1) The peace officers motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [] (2) The peace officers motor vehicle is sounding a siren as may be reasonably necessary. [] (3) The peace officers motor vehicle is distinctively marked. [] (4) The peace officers motor vehicle is operated by a peace officer . . . wearing a distinctive uniform. (Italics added.)

Because the requirement that the peace officers vehicle be distinctively marked is a separate element of the offense from the requirements that the vehicle display at least one red lamp and sound a siren, these latter factors may not be used to satisfy the distinctive marking requirement. (People v. Hudson (2006) 38 Cal.4th 1002, 1010.) [F]or purposes of [Vehicle Code] section 2800.1, a pursuing peace officers vehicle is distinctively marked if its outward appearance during the pursuit exhibits, in addition to a red light and a siren, one or more features that are reasonably visible to other drivers and distinguish it from vehicles not used for law enforcement so as to give reasonable notice to the fleeing motorist that the pursuit is by the police. (Id. at pp. 1010-1011.)

Defendant contends the trial courts instructions on this offense allowed the jury to find Deputy Crosss vehicle was distinctively marked even if it did not have one or more distinctive features apart from a red light and siren. The court instructed the jury as follows:

In order to prove a violation of Vehicle Code Section 2800.2, subdivision (a), each of the following elements must be proved: A person, while operating a motor vehicle, willfully fled or otherwise attempted to elude a pursuing peace officer; the person did so with the specific intent to evade the pursuing peace officer; the peace officers vehicle exhibit [sic] at least one lighted red lamp visible from the front; the person saw or reasonable [sic] should have seen the red lamp; the peace officers vehicle sounded a siren as reasonably necessary; it was distinctively marked; peace officers vehicle was operated by a peace officer wearing a distinctive uniform; and the driver of the pursued vehicle drove a vehicle in a willful and wanton disregard for the safety of persons or property. (Italics added.)

In the written version of this instruction, the italicized portion read: The peace officers motor vehicle was distinctively marked. Defendant argues that, because the phrase it was distinctively marked followed the requirement that the vehicle sounded a siren, the instruction implied that the sound of the siren, rather than the vehicle itself, had to be distinctive.

We disagree. The court did not say it was distinctive, but it was distinctively marked. (Italics added.) A siren cannot be distinctively marked.

At any rate, the foregoing instruction was followed immediately by one describing what it means for the officers vehicle to be distinctively marked. It read: A vehicle operated by a peace officer is distinctively marked when in addition to a lighted red lamp and activated siren, that a reasonable person would be able to recognize it as a peace officers vehicle, and person fleeing is on reasonable notice that pursuit is by a peace officer.

This was a misstatement of the written version of the instruction, which read: A vehicle, operated by a peace officer is distinctively marked when in addition to a lighted red lamp and activated siren, the vehicle is of such appearance that a reasonable person would be able to recognize it as a peace officers vehicle, and a person fleeing is on reasonable notice that pursuit is by a peace officer.

Defendant argues this later instruction, as delivered by the court, allowed the jury to conclude the vehicle is distinctively marked simply because it had a lighted red lamp and an activated siren, and a reasonable person would be able to recognize it as a peace officers vehicle. In other words, the vehicle is distinctively marked if the red light and siren would have made it recognizable as a police vehicle.

We are not persuaded. The instruction, even as misstated, informed the jury something more than the red light and siren must be present and this something must be such that a reasonable person would recognize the vehicle as a peace officers vehicle.

In any event, the written version was made available to the jury. Defendant suggests the written version of the instruction was no better than the oral version. However, the written version made even clearer that the determining factor is the appearance of the vehicle distinct from the red light and siren, not how the vehicle was acting. There was no instructional error.

IV

Polling Error

After the jury notified the court it had reached verdicts on all counts and returned to the courtroom, the verdicts were read. After each verdict, the court asked the jury collectively: Say one, say all, is that your verdict? Each time, all jurors answered in the affirmative. After all verdicts were read, the court asked counsel if they wanted the jury polled. Both said they did not.

Defendant contends the foregoing procedure failed to comply with Penal Code sections 1149 and 1163. Penal Code section 1149 reads: When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. Penal Code section 1163 reads: When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if anyone answer in the negative, the jury must be sent out for further deliberation.

Defendant contends the court violated Penal Code section 1149 when, after the jury foreman indicated verdicts had been reached, it failed to ask the jurors collectively if that was true. Defendant further contends the court violated Penal Code section 1163 when, after each verdict was read, it failed to ask the jurors individually if that was their verdict.

Regarding the first alleged error, failing to ask the jury collectively if it had reached verdicts on all counts, little need be said. Even if, after the jury foreman informed the court the jury had reached verdicts, the court should have asked the jury collectively if this is true, there was no harm in failing to do so. The court did ask the jury collectively to confirm each verdict read. If the jury confirmed each verdict read, it is obvious the jury would have confirmed that verdicts had been reached.

As for the second alleged error, defendants reliance on Penal Code section 1163 is misplaced. That section applies only where counsel requests that the jury be polled. Both counsel declined the trial courts offer to poll the jury. Thus, defendants reliance on People v. Masajo (1996) 41 Cal.App.4th 1335, where the trial court improperly polled the jury collectively following a request for polling, is misplaced.

V

Substantial Evidence--Prior Conviction

Defendant contends there is insufficient evidence to support the trial courts finding that he had a prior robbery conviction for purposes of the three strikes law (Pen. Code,  667, subds. (d) and (e), and  1170.12, subds. (b) and (c)). Defendant acknowledges the People presented evidence tending to show a person named Sheldon Lynn Inman robbed Clarita Gentry in Kings County on November 9, 1980, in violation of Penal Code section 211. However, defendant argues the evidence did not prove he was the Sheldon Lynn Inman who committed that robbery. We are not persuaded.

The records on the prior robbery identified the offender as Sheldon Lynn Inman but did not contain a fingerprint card or a photograph of the offender. Defendant asserts there was no evidence presented regarding how often that name appears in the population. However, other records were presented on defendants conviction for a drug offense in 2002. Those records contain a print card and photograph and identify the perpetrator as Sheldon Inman with a specific social security number and birth date of May 24, 1962. The records from the 1980 Kings County robbery list the same social security number and birth date. In addition, defendant admitted to police officers he committed a robbery in 1979.

In finding the strike allegation true, the trial court explained: As to the other issues that have been raised and argued by Counsel, Peoples 2 [the records from the robbery] for this court trial does not have a print card or a photograph accompanying it. In looking at Peoples 2 in conjunction with Peoples 29 [the records from the drug offense], page 4 of Peoples 29, is a certified copy of a print card for Mr. Inman. Page 5 is a photograph of him. On that print card the Social Security Number is . . . , on page three of Peoples 2, same name of Sheldon Lynn Inman, Social Security Number. . . . Peoples 29 on page four, date of birth is May 24, 1962. Peoples 2 for the Court trial, date of birth May 24, 1962. The Court believes there is adequate authentication that Peoples 2 for this Court trial, in fact, refers to Sheldon Lynn Inman that is seated in courtroom today. Therefore, I find beyond a reasonable doubt that prior to the commission of the offenses in this case this Defendant did suffer a conviction for the crime of armed robbery, violation of Penal Code Section 211/12022(b) of the Penal Code [sic] occurring in the Superior Court of California, County of Kings, on or about January 28, 1981, within the meaning of [Penal Code] section 1170.12(b) and (c) and Penal Code Section 667(d) and (e).

Based on the circumstantial evidence presented to the court, including (1) the name of the perpetrator, (2) the records from the drug offense containing the same name, date of birth, and social security number, and (3) defendants admission that he committed a prior robbery, albeit in 1979 rather than 1980, we find substantial evidence supports the strike finding.

VI

Sentencing Issues

Defendant was sentenced on count 2 to the upper term of eight years, doubled to 16 years under the three strikes law, plus an enhancement of 20 years for discharge of a firearm. On count 3, he received the upper term of seven years, doubled to 14 years, but this term was stayed pursuant to Penal Code section 654. On count 4, defendant received a consecutive one-third middle term of eight months, doubled to 16 months, plus a 16-month enhancement. On count 5, he received a consecutive one-third middle term of one year, doubled to two years.

On counts 6 and 7, defendant received a one-third middle term of one year, doubled to two years, to run concurrently to the term imposed on count 5. On count 8, he was sentenced to the middle term of two years, doubled to four, but this term was stayed. On count 9, defendant was sentenced to a consecutive one-third middle term of one year, doubled to two, plus an enhancement of 16 months. On count 10, the court imposed but stayed the middle term of two years, doubled to four. On counts 11 and 12, defendant was sentenced to consecutive one-third middle terms of eight months, doubled to 16. Finally, defendant received a five-year enhancement for a prior serious felony and a one-year enhancement for a prior prison term, for an aggregate, unstayed sentence of 54 years.

Defendant contends the trial court erred in imposing upper terms on counts 2 and 3. He argues that in making these sentencing choices, the court relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thereby violating the Sixth Amendment to the United States Constitution.

In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (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. (Id. at p. 490 [147 L.Ed.2d at p. 455].) In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), the Supreme Court applied Apprendi to invalidate a state court sentence. (Id. at p. 303 [159 L.Ed.2d at p. 413].) In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the Supreme Court applied Apprendi and Blakely to Californias determinate sentencing law and held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Id. at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)

The People contend defendant forfeited his Sixth Amendment argument by failing to raise it at sentencing. We disagree. Defendant was sentenced on October 24, 2005. Four months earlier, on June 20, 2005, the California Supreme Court decided People v. Black, supra, 35 Cal.4th 1238, which rejected the application of Apprendi and Blakely to Californias determinate sentencing law. Therefore, at the time of sentencing, defendant was not on notice of a potential Sixth Amendment claim. A [criminal] defendant does not forfeit or waive a legal argument that was not recognized at the time of sentencing. (People v. Tillotson (2007) 152 Cal.App.4th 382, 411.)

The trial court found a number of aggravating and mitigating factors. As aggravating factors, the court found: (1) some of defendants crimes involved a threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1); further undesignated rule references are to the California Rules of Court); (2) defendant engaged in a pattern of violent conduct (rule 4.421(b)(1)); (3) defendants prior adjudications as a juvenile and convictions as an adult are numerous and of increasing seriousness (rule 4.421(b)(2)); and (4) defendants prior performance on probation or parole has been unsatisfactory (rule 4.421(b)(5)). As mitigating factors, the court found: (1) defendants controlled substance history somewhat reduced his culpability (rule 4.423(b)(2)); and defendant voluntarily acknowledged wrongdoing at an early stage (rule 4.423(b)(3)).

However, to support imposition of the upper term on count 2, the court found the one factor that defendant engaged in a pattern of violent conduct (rule 4.421(b)(1)) outweighed all mitigating factors. On count 3, the court found the one factor that this crime involved a threat of great bodily harm (rule 4.421(a)(1)) outweighed all mitigating factors.

Defendant contends it was improper for the trial court to rely on these factors, inasmuch as they were not found by the jury or proved beyond a reasonable doubt. The People counter that if any one aggravating factor found by the trial court is inherent in the jurys findings, that factor alone made defendant subject to an upper term sentence. And, the People argue, once the defendant is eligible for an upper term sentence, the court may consider any other relevant factors in arriving at the sentence imposed. The People argue the one factor here is that defendant engaged in a pattern of violent conduct.

In People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ (Black II), the California Supreme Court concluded that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, ___ Cal.4th at p. ___ [at p. 12].) According to the state high court: [I]mposition of the upper term does not infringe upon the defendants 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 defendants record of prior convictions. (Id. at p. ___ [at p. 17].)

In the present matter, we need not decide if the jurys verdict was sufficient to establish that defendant engaged in a pattern of violent conduct. As explained in Black II, imposition of the upper term is permitted if defendants record of prior convictions amounts to an aggravating factor. (Black II, supra, ___ Cal.4th at p. ___ [at p. 17].) Rule 4.421(b)(2) lists as an aggravating factor that defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. In Black II, the defendant had been convicted of three misdemeanors in 1992 for theft related offenses and had two felonies in 1996 for grand theft and burglary. The high court concluded these five convictions were both numerous and of increasing seriousness. (Black II, supra, at p. ___ [at pp. 20-21].)

In the present matter, defendants record contains juvenile adjudications in 1979 for battery (Pen. Code,  242), burglary (Pen. Code,  459), and escape from a juvenile facility (Welf. & Inst. Code,  871). As an adult, defendant was convicted in 1981 of robbery (Pen. Code,  211); in 1986 and again in 1989, of transporting or selling narcotics (Health & Saf. Code,  11379); in 1990, of escape (Pen. Code,  4532, subd. (b)); in 1993, of possession of narcotics (Health & Saf. Code,  11377); in 1994, 2000 and twice in 2001, of using or being under the influence of narcotics (Health & Saf. Code,  11550); and in 2002, of possession of narcotics (Health & Saf. Code,  11377).

The trial court found defendants prior adjudications and convictions to be both numerous and of increasing seriousness. As for the latter, the court took into consideration defendants current offenses. We agree. If the three misdemeanor and two felony convictions of the defendant in Black II are numerous, so too are defendants three juvenile adjudications, five misdemeanors and four felonies.

Because defendants prior record alone was sufficient to make him eligible for the upper term, the trial court was free to consider any other factors relevant to this sentencing choice. Therefore, defendants Sixth Amendment rights were not violated.

VII

Abstract of Judgment

Defendant contends the abstract of judgment does not reflect the sentence actually imposed by the court in a number of respects. We agree as to several counts.

On count 2, the court imposed an enhancement of 20 years pursuant to Penal Code section 12022.53, subdivision (c). However, the court declined to sentence on a Penal Code section 12022.5 enhancement the jury also found true. Yet the abstract of judgment includes a 16-month term for the Penal Code section 12022.5 enhancement. This must be stricken.

On count 3, the court imposed a sentence of 14 years but stayed it pursuant to Penal Code section 654. The abstract of judgment correctly indicates the term imposed on count 3 is stayed. Although the abstract lists the 14-year term without parentheses, the 14 years is not included in the total sentence imposed. No modification of the abstract is necessary on this count.

On counts 6 and 7, the court imposed terms of 16 months and enhancements of two years to run concurrently with the sentence imposed on count 5 but consecutively to the terms imposed on counts 2 and 4. The abstract reflects that the term imposed on counts 6 and 7 are to run consecutively. However, it also states: With regard to counts 6 and 7 as well as the enhancements attached to each of those counts: The court ran each term imposed consecutive to counts 2 and 4 but concurrent to count 5. The additional terms for counts 6 and 7 are not reflected in the total sentence imposed. Nevertheless, to avoid any confusion, the abstract should be amended to indicate the terms on counts 6 and 7 are to run concurrently.

Finally, on counts 8 and 10, the court imposed terms of four years, but stayed them pursuant to Penal Code section 654. Although the abstract does not list the four-year terms in parentheses, it correctly indicates the terms are stayed and does not include those terms in the total sentence imposed. No modification of the abstract is necessary on these counts.

In all other respects, the abstract correctly reflects the sentence imposed by the trial court.

Disposition

The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment with the changes indicated above on counts 2, 6 and 7 and to send a certified

copy of the corrected abstract to the Department of Corrections and Rehabilitation.

HULL, J.

We concur:

SCOTLAND, P.J.

BLEASE , J.

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