P. v. Joyner

Filed 4/26/07 P. v. Joyner CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. J. Michael Welch, Judge. Affirmed.

Shawn OLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, defendant was found guilty of robbery (Pen. Code, 211).^[1] The jury also found true that defendant had used a deadly weapon in the commission of the offense within the meaning of section 12022, subdivision (b)(1). Defendant thereafter admitted that he had suffered a prior strike conviction pursuant to sections 667, subdivisions (b) through (i), and 1170.12; in return, the prior prison term ( 667.5, subd. (b)) allegations and the gun-use enhancement were dismissed. Defendant was sentenced to a total term of 10 years in state prison: the upper term of five years, doubled to 10 years for the prior strike allegation. On appeal, defendant contends (1) his constitutional right to be present at all critical stages of the proceeding was violated when he was not present for the courts resolution of a jury note; and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term. We reject these contentions and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On January 27, 2005, Sanjaykumar Patel was working at the Viva Liquor Store in Highland. The store is owned by his brother and is similar to a 7-Eleven convenience store. About 10:30 a.m., Patel had been standing by the cash register as defendant shopped for some 20 minutes, piling beer, chips, and cigarettes on the counter while he looked for more items. Patel asked defendant why he was buying so much. Defendant responded that it was his birthday, and he was going to have a big party.

Defendant asked Patel how much it would cost for the items he placed on the counter. Patel told him it was approximately $108. Thereafter, defendant showed Patel a gun and robbed the store. He told Patel to [t]ake out all the money. When Patel saw the gun, he took money out of his pocket, but defendant stated it was not enough. Patel then opened the cash register. Patel gave defendant all the money from the register, which was about $300, because he was afraid of the gun.

As defendant left the store, he continued to hold the gun and told Patel not to move. After defendant left, Patel pushed the security alarm button and called 911.^[2] Patel was very frightened when he made the call to the police and was unable to describe at that time what the robber was wearing.

Subsequently, Patel went outside briefly to check which direction defendant had gone. He saw defendant leave with another person in a large green van or Jeep.

Police officers arrived and interviewed witnesses. After interviewing witnesses, police believed defendant left in a green Lincoln Navigator. A description of the car was broadcast to other police units working the area. A green Lincoln Navigator was spotted about 20 to 25 minutes after the robbery, and the vehicle eventually stopped while under police surveillance at a residence in the Rialto/San Bernardino area. Later, defendant and a female left the residence and drove away in the Navigator. Defendant was driving, and the female was a passenger. Eventually, police stopped the vehicle, and defendant was taken into custody. A gun was found on the drivers seat of the car where defendant had been sitting. Police also found $183 in cash in defendants possession, all in small bills.

About an hour and half later, Patel was transported to the scene, where an in-field lineup was conducted. Patel identified defendant as the robber. Patel also identified defendant as the robber at trial.

The store had a DVD video recording of the robbery. The video was shown to the jury and introduced into evidence. Two Polaroid photographs taken of defendant that day at the police station were also introduced into evidence.

II

DISCUSSION

A. Right to be Present When Jury Request to View Defendant

Defendant contends his constitutional right to be present at all critical stages of the proceedings was violated when he was not present for the courts resolution of a jury note, which asked if the jury could view defendant from the side, without his glasses on, at a time when the jury was deliberating. He further claims that his trial counsels failure to consult him about the note constituted ineffective assistance of counsel.

At trial, the stores surveillance videotape was shown to the jury by playing the video and by computer presentation. Although defendant was present during the presentation of evidence in trial, he was never asked to display himself to the jury in any manner or to otherwise partake in any in-court show-up identification.

The presentation of evidence was concluded in the early afternoon of May 10, 2005, and jury deliberations commenced mid-afternoon on May 11.

The jurys first note, dated May 11, 2005, requested a readback of portions of Patels testimony and Detective Tanners testimony about the Navigator. Defendant was present for the first note.

During the morning of May 12, 2005, the jurys second note requested the viewing of the DVD video frame-by-frame as seen in the computer presentation. Defendant was present for the discussion about presenting the video to the jury. The trial court informed the jury that a district attorney technician could show them and reshow them, if they wanted, the video they saw in the courtroom. The district attorney technician showed the video to the jury at 11:13 a.m. on May 12.

At 2:48 p.m., on May 12, 2005, the trial court received a third jury note which stated, Is there the possibility of viewing the defendant from a side profile, or/and without the glasses? The trial court denied the jurys request, writing a response on the note which stated, No. All the evidence has been received. Apparently, defendants trial counsel did not consult with defendant as to note No. 3, nor was defendant present in court when the court denied the jurys request.

At 3:11 p.m. on May 12, 2005, the bailiff played the video again for the jurors. At 3:34 p.m., the bailiff delivered the trial courts response to note No. 3 to the jurors. The following morning the jury returned a verdict of guilty.

On or about October 28, 2005, substitute counsel for defendant filed a motion for new trial based on defendants trial counsels reported ineffective assistance of counsel by failing to consult defendant on a critical jury question and by arguing that the court should not comply with the jurys request because all the evidence had been received. The People filed an opposition to the new trial motion on December 13, 2005.

At the hearing for the motion for new trial, defendants substituted counsel argued that the jurys request to view defendant was not asking for new evidence; he likened their request to a visual read-back of testimony. Counsel also argued that it was critical for the jury to view defendant. The prosecutor argued that the viewing of defendant during deliberations would constitute new evidence, and the trial court arguably would have made the same decision even if counsel had consulted with defendant. The prosecutor further noted this was a decision about which defense counsel did not need to consult his client. Lastly, the prosecutor argued that the evidence was overwhelming, and counsels conduct did not affect the outcome of the case.

Subsequently, the trial court noted that its initial reaction to note No. 3 was that testimony had been concluded and that the jury had been deliberating for some time. The court also pointed out his concern, [H]ow would you go about doing a view of the Defendant? Would you have him stand up and look around? Would you have him sit down? How would that be accomplished? The court concluded that it was within the courts discretion to deny the request, as it was new evidence and therefore should not be allowed. The court also believed that if defendant was paraded in front of the jury after the jury had been deliberating for several days, it would have been to defendants detriment and cause a guilty verdict because the video was so clear.

The trial court further stated that any attorney in the building would have responded as defendants trial counsel had. The court found it was to defendants advantage not to be seen by the jurors, and even if defendants trial counsel had told him that he had spoken to defendant and defendant wanted the jury to view him, the court still would have denied the jurys request. The court believed that if defendants counsel had advised defendant against the viewing, defendant would have acceded to his trial counsels advice. The court noted that defendant and his trial counsel got along very well with each other. In conclusion, the trial court denied the motion for new trial, finding no ineffective assistance of counsel.

Defendant contends the courts ruling was in error, as a criminal defendant has a statutory and constitutional right to be present at all critical stages of the proceedings.

A criminal defendant has a statutory and constitutional right to be present during such phases of trial as are important to his or her defense unless he or she is voluntarily absent. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, 15; Pen. Code, 977, subd. (b)(1) & (2); 1043, subds. (a) & (b); People v. Freeman (1994) 8 Cal.4th 450, 511; People v. Chavez (1980) 26 Cal.3d 334, 357-358 [ . . . California courts throughout our history have taken note of the most substantial nature of the defendants right to confront witnesses, designating it a right of the highest importance].) However, [a] defendant . . . does not have a right to be [personally] present at every hearing held in the course of a trial. [Citation.] (People v. Cleveland (2004) 32 Cal.4th 704, 741.) More specifically, under the due process clause of the Fourteenth Amendment, a criminal defendant does not have a right to be personally present at a particular proceeding unless the proceeding is critical to [the] outcome and his presence would contribute to the fairness of the procedure. [Citation.] (People v. Waidla (2000) 22 Cal.4th 690, 742.) Similarly, under the California Constitution, [t]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him . . . . [Citation.] [Citation.] (People v. Davis (2005) 36 Cal.4th 510, 530.)

Section 1138 states, After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.^[3] (Italics added.)

Assuming, without deciding, that the issue has not been forfeited, we find that defendants absence did not constitute error. Defendants presence at the discussion between his trial counsel and the court concerning the jury note had no reasonable and substantial relation to defendants full opportunity to defend against the charges. In addition, the jurys request was discussed in the presence of defendants counsel. Defense counsel objected to the jurys request for an in-court identification show-up of defendant, i.e., to view defendant from the side without his glasses, on the ground that all of the evidence had been received. As the trial court pointed out at the motion for new trial hearing, the decision was purely a strategy issue, which defendants attorney was equipped to handle.

Under article I, section 15 of the California Constitution, a criminal defendant does not have a right to be personally present either in chambers or at bench discussions that occur outside of the jurys presence on questions of law or other matters as to which [his] presence does not bear a reasonably substantial relation to the fullness of his opportunity to defend against the charge. (People v. Waidla, supra, 22 Cal.4th at p. 742.) For example, the rereading of testimony or discussion of a jury note is not a critical stage of the proceedings (People v. Ayala (2000) 23 Cal.4th 225, 288), because the reading back of testimony ordinarily is not an event that bears a substantial relation to the defendants opportunity to defend (People v. Horton (1995) 11 Cal.4th 1068, 1121). The jurys request of viewing defendant without his glasses, which was not done at trial, would have constituted new evidence, contrary to defendants assertion. (See People v. Garcia (2005) 36 Cal.4th 777, 782; People v. Sutter (1982) 134 Cal.App.3d 806, 820.)

Numerous trial situations, far more closely connected to the trial itself than that presented in the instant case, have been held not to constitute a critical stage. (See, e.g., Kentucky v. Stincer (1987) 482 U.S. 730, 745-747 [107 S.Ct. 2658, 96 L.Ed.2d 631] [the defendants due process rights were not violated by his exclusion at a hearing in which the trial judge determined the competency of child witnesses]; People v. Horton, supra, 11 Cal.4th at p. 1121 [rereading of testimony is not a critical stage of a criminal proceeding]; People v. Moon (2005) 37 Cal.4th 1, 20 [jury view of the crime scene is not a critical stage]; People v. Lang (1989) 49 Cal.3d 991, 1025 [same]; People v. Perry (2006) 38 Cal.4th 302, 312 [the defendants absence from a bench conference discussing exclusion of his wife from the courtroom was not a critical stage of the proceedings â€‘‑ a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendants presence would not contribute to the fairness of the proceeding]; People v. Rogers (2006) 39 Cal.4th 826, 855-856 [the defendant had no state statutory or federal constitutional right to attend jury screening discussions]; United States v. Gagnon (1985) 470 U.S. 522, 526-527 [105 S.Ct. 1482, 84 L.Ed.2d 486] [trial courts ex parte discussion with juror was not a critical stage]; People v. Morris (1991) 53 Cal.3d 152, 210 [discussion of jury instructions was not a critical stage].)

Even if we were to assume there was a violation of the right to be present at a critical stage of the proceedings, defendant has the burden of showing that his absence prejudiced his case or denied him a fair and impartial trial. (People v. Cleveland, supra, 32 Cal.4th at p. 741; People v. Ervin (2000) 22 Cal.4th 48, 74.) Defendant has not met this burden. [A] conviction will not be reversed for a violation of section 1138 unless prejudice is shown. (People v. Jenkins (2000) 22 Cal.4th 900, 1027; see also People v. Jennings (1991) 53 Cal.3d 334, 384-385 [finding error based on violation of section 1138 harmless beyond a reasonable doubt]; People v. Ainsworth (1988) 45 Cal.3d 984, 1020 [applying state standard of review to find similar error harmless].) Reversal is required only if it is reasonably probable that defendant would have received a more favorable result had the trial court read the jurys request in his presence or had the trial court allowed him to be viewed from the side without his glasses. (See Ainsworth, at p. 1020.)

Similarly, [u]nder the federal Constitution, error pertaining to a defendants presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23 [17 L.Ed.2d 705, 87 S.Ct. 824].) [Citations.] Error under section 977 is state law error only, and therefore is reversible only if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.] [Citations.] (People v. Davis, supra, 36 Cal.4th at pp. 532-533.)

Defendant claims that refusing the jurys request for an in-court show-up sent the wrong message to this jury, and that refusing to allow the jury to view [defendant] again without informing [defendant] or allowing [defendant] any input on the jurys request cannot be deemed harmless error. This argument is entirely speculative. (See People v. Horton, supra, 11 Cal. 4th at p. 1121.) Defendant has not shown that his absence during the discussion of the jurys request or the courts refusal to allow the jurys request affected the jurys verdict in any way.

We cannot detect prejudice to defendant on this record. The issue was purely a strategical one, which his counsel was equipped to handle. Further, as the trial court noted at the motion for new trial, it is most likely that if defendant had been consulted, defendant would have followed his counsels advice not to display himself to the jury. In addition, even if defendant had been able to persuade his counsel to argue for the granting of the jurys request, the court explained that it still would have denied the jurys request. Accordingly, defendant cannot show that his presence would have benefited the defense or somehow caused the court to grant the jurys request.

Because defendant provides no basis on which we could conclude the result of his trial would have been different had he been present at the hearing where the jurys request was discussed, we find defendants absence was harmless. For the same reason, his absence did not offend his constitutional rights to due process or a fair and reliable trial. A review of the record leads us to conclude that even if the court had erred in denying the jurys request in defendants absence, it was harmless beyond a reasonable doubt. (See People v. Davis, supra, 36 Cal.4th at pp. 533-534.)

Defendant erroneously argues that the absence of a defendant from a critical stage of the proceedings is structural error requiring reversal. Erroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice. [Citations.] (People v. Perry, supra, 38 Cal.4th at p. 312.)

A structural error . . . is a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself, [citation]. We have found structural errors only in a very limited class of cases: See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (a total deprivation of the right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (lack of an impartial trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (unlawful exclusion of grand jurors of defendants race); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (the right to self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (the right to a public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable-doubt instruction to jury). (Johnson v. United States (1997) 520 U.S. 461, 468-469 [117 S.Ct. 1544, 137 L.Ed.2d 718].)

Rushen v. Spain (1983) 464 U.S. 114 [104 S.Ct. 453, 78 L.Ed.2d 267] is dispositive of defendants argument that the decision to deny the jurys request without defendants presence was structural error requiring reversal. Our cases recognize that the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant. At the same time and without detracting from the fundamental importance of [these rights], we have implicitly recognized the necessity for preserving societys interest in the administration of criminal justice. Cases involving [such constitutional] deprivations are [therefore] subject to the general rule that remedies should be tailored to the injury suffered . . . and should not unnecessarily infringe on competing interests. [Citations.] In this spirit, we have previously noted that the Constitution does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. [Citation.] There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines societys interest in the administration of criminal justice. (Id. at pp. 117-118, fns. omitted.)

Defendant has made no showing of prejudice as a result of the decision to deny the jurys request in defendants absence. In the absence of any suggestion of actual prejudice, reversal in this context would undermine[] societys interest in the administration of criminal justice. (Rushen v. Spain, supra, 464 U.S. at p. 118.) Error, if any, was manifestly nonprejudicial.

Defendant also asserts that his counsels failure to consult with him about the jurys request to view defendant from the side view without his glasses or have him present at the hearing constituted ineffective assistance of counsel. We disagree.

Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. (People v. Holt (1997) 15 Cal.4th 619, 703.)

To demonstrate that he received ineffective assistance of counsel, a defendant must establish both (1) that his counsels performance was deficient under an objective standard of professional competency, and (2) that there is a reasonable probability that, but for counsels errors, a more favorable determination would have resulted. (People v. Williams (1997) 16 Cal.4th 153, 214-215, and cases cited therein.) [I]f the record does not preclude a satisfactory explanation for counsels actions, we will not, on appeal, find that trial counsel acted deficiently. (People v. Stewart (2004) 33 Cal.4th 425, 459, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

Here, counsel presumably had a compelling tactical purpose for objecting to the jurys request, i.e., that an in court show-up of defendant without his glasses would have emphasized his likeness to the store video to his disadvantage. As the trial court noted at the motion for new trial hearing, any attorney in the building would have said no to allowing defendant to be viewed as the jury requested. The court found it to defendants advantage not to be seen by the jurors. After having reviewed the entire record, including the videotape and pictures taken of defendant (exhibits 4, 7, and 8), we cannot say that counsels performance was deficient under an objective standard of professional competency.

In any event, defendant cannot show prejudice. As noted in detail, ante, defendants presence would not have changed the courts ruling on the jurys request. The evidence of defendants guilt was strong. Defendant cannot show that but for his counsels omission in failing to advise him of the jurys request and to have him present for the resolution of the jurys request, there is a reasonable probability that he would have obtained a more favorable result.

B. Blakely Violation

At sentencing, the trial court imposed the upper term of five years on the robbery conviction based on numerous aggravating factors: (1) that the crime involved threat of great bodily harm or other acts disclosing a high degree of cruelty; (2) that defendant was armed with or used a weapon at the time of the offense; (3) that the crime was carried out in a manner indicating planning and sophistication; (4) that the crime involved an attempted or actual taking of great monetary value; (5) that defendant had engaged in violent conduct, which indicates a serious danger to society; (6) that defendants prior convictions as an adult were numerous; (7) that defendant had served at least three prior prison terms; (8) that defendant was on parole when the offense was committed; and (9) that defendants prior performance on probation and parole was unsatisfactory.

Relying on Blakely, supra, 542 U.S. 296 and Apprendi, supra, 530 U.S. 466, defendant contends the upper term sentence violates his Sixth Amendment rights because the sentence was based on aggravating factors not reflected in the jury verdict or admitted by defendant.

The People argue this issue has been resolved adversely to defendant by our state Supreme Court in People v. Black (2005) 35 Cal.4th 1238, 1244 (Black). However, Black has since been overruled.

In Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868] (Cunningham) the United States Supreme Court overruled Black and held that the middle term in Californias determinate sentencing law was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, at p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 and affirmed in Apprendi: [T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] (Cunningham, at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488 & 490.)^[4] The court explained Californias determinate sentencing law violates Appprendis bright-light 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, at p. 868.)

Defendants assertion that the sentence violates Cunningham is without merit. The jury found true that defendant had used a deadly weapon in the commission of the offense. Defendant thereafter admitted that he had suffered a prior strike conviction; in return, the two prior prison term allegations and the weapon enhancement were stricken. These admissions and jury findings support the imposition of the upper term.

In any event, the rule of Cunningham does not apply to the use of prior convictions to increase the penalty for a crime. (Cunningham, supra, 127 S.Ct. at p. 868; see also Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301.) The Almendarez-Torres/Apprendi exception is sufficiently broad to encompass all matters ascertainable from the face of the prior judgment of conviction. (People v. McGee (2006) 38 Cal.4th 682, 707-709; People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) As the record of sentencing would show whether probation was granted and whether defendant was on probation or parole when the current offense was committed or whether defendants performance on probation or parole was unsatisfactory, we conclude that the exception extends to these facts as well. Defendants sentencing report shows that he has an extensive criminal history as well as a history of violating probation and parole. It also shows that he had served four prior prison terms. Hence, imposition of the upper term based on defendants criminal recidivism was proper.

It is settled that only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Earley (2004) 122 Cal.App.4th 542, 550.) Here, the trial court relied on defendants prior convictions, prior prison terms, prior performance on probation and parole, and recidivism to impose the upper term, as permitted by Cunningham and Blakely. Even if we were to assume error under Cunningham based on the trial courts reference to other aggravating factors, the error was harmless beyond a reasonable doubt (see Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711]). (Washington v. Recuenco (2006) ___U.S.___, ___[126 S.Ct. 2546, 2553] [[f]ailure to submit a sentencing factor to the jury . . . is not structural error and is subject to harmless error rule]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)

The United States Constitution does not mandate a jury trial on prior convictions, and any right to a jury trial would be purely statutory. (Apprendi, supra, 530 U.S. at pp. 487-490; People v. Epps (2001) 25 Cal.4th 19, 23; see 1025.) By statute in California, a defendant is afforded a jury trial only as to the fact of those prior convictions alleged in the accusatory pleading as statutory sentence enhancements. ( 1025; Epps, at pp. 29-30.) Prior convictions considered as aggravating factors for the purpose of imposing the upper term may be determined by the court upon facts shown in the probation report, as the trial court did here, and need be established only by a preponderance of the evidence. ( 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) Thus, as defendant was not entitled to a jury trial, Blakely and Apprendi have no application here. (See Epps, at p. 23; 1025; see also Cunningham, supra, 127 S.Ct. at p. 860, 868; Apprendi, at pp. 488 & 490.)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

MILLER

J.

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

^[2] The 911 audiotape was played for the jury at trial. The audiotape was admitted into evidence as exhibit 3, and the transcript tape as exhibit 3A.

^[3] Section 977 provides in pertinent part: In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present. ( 977, subd. (b)(1).)

^[4] In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)