P. v. Matthews

Filed 9/13/07 P. v. Matthews 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

----

Codefendants Lawrence Alvin Lovely and Rick D. Matthews victimized four employees of a rental store in south Sacramento. A jury convicted defendants of four counts of second degree robbery (Pen. Code,  211, 212.5, subd. (c)‑‑counts one, four, seven & ten)^[1]in which they both personally used firearms ( 12022.53, subd. (b)); convicted both defendants of four counts of false imprisonment ( 236‑‑counts two, five, eight & eleven) in which they both personally used firearms ( 12022.5, subd. (a)); convicted Lovely of assault with a firearm ( 245, subd. (a)(2)‑‑count three) in which he personally used a firearm ( 12022.5, subds. (a) & (d)); and convicted Matthews of three counts of assault with a firearm ( 245, subd. (a)(2)‑‑counts six, nine & twelve) in which he personally used a firearm ( 12022.5, subds. (a) & (d)). In a bifurcated proceeding, the trial court found that Lovely had sustained three prior serious felony convictions ( 667, subds. (a), (b)-(i), 1170.12), and that Matthews had sustained five prior serious felony convictions, three of which had been brought and tried separately.

Defendants were sentenced to state prison for the four robbery counts and the remaining counts were stayed pursuant to section 654. The sentences each consisted of determinate terms of 100 years plus consecutive indeterminate terms of 120 years to life. The 100 years consisted of four terms of 10 years for firearm use ( 12022.53, subd. (b)), plus four terms of 15 years for three prior serious felonies ( 667, subd. (a)). The 120-year period of parole ineligibility consisted of four consecutive periods of 30 years, each consisting of 5 years^[2]for the upper term, 10 years for the firearm enhancement, and 15 years for three prior serious felonies. The upper term was selected because the manner in which the crimes were carried out indicates planning, and because each defendant has engaged in violent conduct, is a serious danger to society, and has a criminal record that is significant.

On appeal, defendants contend (1) their Wheeler/Batson^[3]motions were erroneously denied, (2) the destruction of prospective juror questionnaires denied them a meaningful appellate record for their Wheeler/Batson claim, and (3) the upper terms and consecutive sentences were based on facts not found true by a jury. Lovely additionally contends there was insufficient evidence to support a true finding on his September 1988 serious felony conviction. We shall affirm defendants convictions.

FACTS

The facts of defendants offenses are not at issue and need not be recounted. Relevant procedural facts will be set forth in the Discussion.

DISCUSSION

I. Wheeler/Batson Claims

Defendants contend the trial court erred prejudicially when it denied their Wheeler/Batson challenges to the prosecutors excusals of prospective jurors A.J. and G.C. We are not persuaded.

Background

Voir dire began with the trial court asking groups of prospective jurors about bias and hardship. Prospective jurors who were not excused for bias or hardship were given a questionnaire to complete. A.J. and G.C. were part of the second and third groups, respectively. They remained on the panel after the courts initial questioning.

On May 31, 2005, the court filled the jury box with 12 prospective jurors and voir dire continued with the court and counsel posing questions. The court inquired whether the prospective jurors could be fair. A.J. responded and said, my only son is graduating from high school on the 8th of June at 12:00 noon. Would that make a difference? The court responded, Maam, if you are selected, I will make sure that you will be able to be there.

After counsel had inquired about several topics including the presumption of innocence and race, the court recessed and called in prospective jurors who wished to raise concerns in private. G.C. had indicated on his questionnaire that he wanted to answer one or more questions in private. G.C. was called in and this exchange ensued:

[G.C.]: My mom shot a gun before, not at anybody, but she shot a gun before. Thats the question, isnt it?^[[4]]

[THE PROSECUTOR]: Yes, the question was, Have you or any member of your family ever shot a gun?

THE COURT: Your mother, thats it, she just shot a weapon, thats it?

[G.C.]: Yeah, I just didnt want to‑‑

[THE PROSECUTOR]: The other question was, Has the issue of racial prejudice affected your life in any way?^[[5]]

THE COURT: Did he indicate a question to that, too?

[THE PROSECUTOR]: Yes.

THE COURT: Has racial prejudice affected you?

[G.C.]: In some ways, yes, and in some ways, no. I mean, like little stuff. It is not big things, but little things.

THE COURT: Do you all have any questions?

[THE PROSECUTOR]: No.

[COUNSEL FOR DEFENDANT LOVELY]: No, Judge.

THE COURT: Any of it by police officers?

[G.C.]: Not whatsoever.

THE COURT: You mean living everyday as a young African-American in the society, is that it?

[G.C.]: Yeah.

The prospective jurors returned to court and the parties asked questions and exercised peremptory challenges. When A.J. was called into the jury box, the court asked her whether she had any comment regarding her ability to be a fair juror in light of the questions asked so far. A.J. again raised the issue of her sons graduation, and the court again assured her that she would be able to attend. Defendant Lovelys counsel then had this exchange with A.J.:

[COUNSEL FOR DEFENDANT LOVELY]: On question 46,^[[6]] it is a question about direct and circumstantial evidence. And I dont know if this was just an inadvertent situation here, but on question 8 [sic]^[[7]] it says, Do you have any disagreement with [this] rule of law? and it is marked Yes.

[A.J.]: I dont recall about the question. I think I was ambivalent. I didnt quite understand the nature.

[COUNSEL FOR DEFENDANT LOVELY]: So with direct witness [sic], you witness something. Do you have children at home?

[A.J.]: Yes.

[COUNSEL FOR DEFENDANT LOVELY]: Take, for example, Johnny goes back to the pantry and you have made a wonderful chocolate cake and you tell Johnny, until you eat your asparagus or broccoli you cant have any cake. And you go back to the pantry and there is a big piece of cake missing, and you see Johnny and he has cake on his face and he says no, mom, I didnt do it. That is circumstantial evidence, and the Judge will instruct you circumstantial evidence can be used to find guilt beyond a reasonable doubt. [] Are you comfortable with that?

[A.J.]: Im comfortable with that.

Shortly thereafter, the prosecutor used the seventh of her allotted 30 peremptory challenges to excuse A.J. (Prospective Juror No. 2). Lovelys counsel indicated that he wanted to approach the bench. Outside the presence of the prospective jurors, the following transpired:

THE COURT: . . . An African-American female juror, [A.J.], the People exercised a peremptory challenge, and my understanding is that . . . the defense, wished to make comments.

[COUNSEL FOR DEFENDANT LOVELY]: Yes, Your Honor. Ive gone through her questionnaire and I dont see anything that indicates she couldnt be fair. It is not like she has a boyfriend that is in prison or stated anything to give a clue that she could not be a fair and impartial juror in this case. I didnt hear the District Attorney ask for anything that indicated otherwise.

THE COURT: Is there anything else?

[COUNSEL FOR DEFENDANT LOVELY]: Thats it.

[COUNSEL FOR DEFENDANT MATTHEWS]: Could I just add to that?

THE COURT: Sure.

[COUNSEL FOR DEFENDANT MATTHEWS]: I was thinking the same thing as [counsel for defendant Lovely]. I was kind of surprised on that one. She works under Lauren Hammond, District Five, a councilwoman.

THE COURT: Yes.

[COUNSEL FOR DEFENDANT MATTHEWS]: And all her answers seem to be appropriate. There was a couple things I think the defense should be a little concerned about, but I still gave her a fair score and I was surprised the prosecution would have wanted to exercise a challenge on her. [] I would also like the record to reflect that of the 12 seating [sic] right now, we have [Juror No.] 12 is a Black female and [Juror No.] 8 is also (Juror No. 8, sealed) is a Black female. So out of the three she is kicked by the prosecution, so I would submit it.

THE COURT: I feel there is a non-racial basis. I feel that the challenge is good. If you look at her on page 9, [questions], looks like [question] 34-A, and on page 10, [question] 37-B, she deals with circumstantial evidence where she has a problem with that.^[[8]] And on page 13 she states that non-minorities are given a break more often than not as opposed to minorities.^[[9]] And on page 13, [question] 49^[[10]] she indicates that her son has been pulled over by the police for tickets.

[THE PROSECUTOR]: And specifically she used the word profiled in that answer.

THE COURT: Well, I understand, but the bottom line is I feel that the challenge was properly exercised and the People do not have to give an explanation.

During the selection of alternate jurors, prospective juror G.C. was brought into the jury box.^[11] The prosecutor promptly used a peremptory challenge to excuse G.C. Outside the presence of the jury, counsel for Matthews indicated that he wanted to discuss the strike used against G.C., and this exchange ensued:

THE COURT: And he is an African-American juror.

[COUNSEL FOR DEFENDANT MATTHEWS]: Thats correct.

THE COURT: And I believe he indicated to private questions, one, that his mother or someone fired a gun or something.

[COUNSEL FOR DEFENDANT MATTHEWS]: Yeah.

THE COURT: And I forget the other question.

[THE PROSECUTOR]: The other one was that hes prejudice [sic] in his life; in lots of little ways, he has been prejudiced against.

[COUNSEL FOR DEFENDANT MATTHEWS]: May I respond on that?

THE COURT: Sure.

[COUNSEL FOR DEFENDANT MATTHEWS]: I think when he was talking privately, he said, yeah, I feel prejudice in some things, but nothing really important. He said little things, but nothing big.

THE COURT: Basically what he indicated he was prejudiced [sic], and I put the question in terms of his everyday life growing up as a young African-American male. I think I put the question to him that way and he said yeah, thats it. [] And of course, the prosecutor can take that or not take it, but it doesnt appear to me that he was excused because of solely race. She might not believe the representations that he could set it aside. And he may well be more sympathetic to these two African-American men based upon his situation in life. Your motion is denied.

[COUNSEL FOR DEFENDANT LOVELY]: On [question] 52^[[12]] it says, Im also African-American, but just because I am it does not mean that Im going to favor someone because of their race.

THE COURT: No, I understand that, thats what he put on the paper, and on the paper you can put just about anything down there you want to. Im talking about what he was examined on by the Court, and you lawyers had the opportunity to do that. [] And even beyond that, if you wanted to go further and question him more, you could have, but you elected not to. So thats the way that one was handled.

Analysis

On appeal, defendants contend they made a prima facie showing that the prosecutor exercised peremptory challenges against prospective jurors A.J. and G.C. because they were African-Americans. We disagree.

The United States Supreme Court recently reiterated the applicable legal standards. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations; fn. omitted.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. (People v. Gray (2005) 37 Cal.4th 168, 186, quoting Johnson v. California(2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138] (Johnson).)

Jury selection here occurred just prior to the decision in Johnson, which lessened the former California standard for a prima facie case. (Johnson, supra, 545 U.S. at p. 168 [162 L.Ed.2d at p. 138.) We shall review the record, apply the Johnson standard, and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race. (People v. Cornwell (2005) 37 Cal.4th 50, 73 (Cornwell); People v. Buchanan (2006) 143 Cal.App.4th 139, 146.)

Prospective Juror A.J.

Prospective juror A.J. had indicated, in response to the first question 46 on the questionnaire, that she disagreed with California law to the effect that direct and circumstantial evidence are equally acceptable and neither is entitled to greater weight than the other. Contrary to Lovelys argument, the record does not reveal the nature of her disagreement or whether it would favor one party. A disagreement with, or misunderstanding of, controlling law is a reasonable and nondiscriminatory basis for an attorney to exercise a peremptory challenge. That is so, even though Lovelys counsel may have rehabilitated A.J. to his satisfaction. The prosecutor was not required to accept A.J. just because she appeared to change her opinion under questioning. Rather, the prosecutor could reject the claimed rehabilitation arbitrarily, so long as she did not do so based upon group bias. (Cornwell, supra, 37 Cal.4th at p. 70.) Nothing in the record suggests she used that prohibited reason.

The trial court observed that, in her questionnaire, A.J. opined that non-minorities are given a break more often than minorities. This opinion, on page 13 of the questionnaire, appeared to respond to question 53, Do you believe that the American system of trial by jury is fair to all defendants, no matter their race or ethnicity. As the court noted in Cornwell, distrust of the criminal justice system and its treatment of African-American defendants is a view not restricted to African-American persons. (Cornwell, supra, 37 Cal.4th at p. 70.) A prosecuting attorney has a nondiscriminatory reason to exercise a peremptory challenge to a prospective juror who expresses such distrust. (Ibid.)

A.J. had also mentioned that her son had been profiled when he was pulled over by the police and ticketed. Our Supreme Court has repeatedly upheld peremptory challenges made on the basis of a prospective jurors negative experience with law enforcement. (People v. Turner (1994) 8 Cal.4th 137, 171, disapproved on another point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Thus in People v. Walker (1988) 47 Cal.3d 605, the court upheld a peremptory challenge to a prospective juror who had related that he had been repeatedly stopped and harassed by San Jose police officers while riding his motorcycle because he fit what he called the average black man syndrome. (Id. at p. 625, italics added.) The prospective juror in Walker had claimed to be a victim of racial profiling, just as A.J. had claimed with respect to her son.

Although the trial court had not asked the prosecutor for her reasons for the challenge, she explained that A.J. had used the word profiled in that answer. Thus it was A.J.s choice of words as an individual, rather than her membership in an identifiable group distinguished on racial, religious, ethnic, or similar grounds (People v. Avila (2006) 38 Cal.4th 491, 541), that motivated the prosecutors challenge. Nothing on this record supports an inference that the prosecutor excused A.J. on the basis of her race. (Cornwell, supra, 37 Cal.4th at p. 73.)

Prospective Juror G.C.

Prospective juror G.C. had responded affirmatively to question 49, which asked, Has the issue of racial prejudice affected your life in any way? During voir dire he confirmed this, saying, In some ways, yes, and in some ways, no. I mean like little stuff. It is not big things, but little things. G.C. agreed with the trial courts characterization that he experienced prejudice living everyday as a young African-American in the society.

This case involved two African-American men armed with guns. The prosecutor could deduce that G.C. might be sympathetic to the defense, not because he was a member of an identifiable group distinguished on racial, religious, ethnic, or similar grounds (People v. Avila, supra, 38 Cal.4th at p. 541), but because he personally had experienced prejudice in his life and thus might tend to favor underdogs, which defendants may have appeared to be.

Jury Questionnaires

Lovely contends the record nevertheless supports an inference of group bias discrimination. He notes that both defense counsel pointed out that there was nothing in [A.J.s] 17-page questionnaire which indicated that she could not be a fair and impartial juror. But defense counsels opinions that A.J. could be fair and impartial do not support an inference that a prosecutor who holds a different opinion is engaging in group bias. We have already rejected Lovelys argument that reliance on G.C.s personal experience of prejudice supports an inference of group bias.

Comparative Juror Analysis

Nor does an inference of discrimination arise from a comparison of the dismissed jurors responses with those of other jurors. (Miller-El v. Dretke (2005) 545 U.S. 231, 241 [162 L.Ed.2d 196, 214].)^[13] As noted, A.J. indicated on her questionnaire that she disagreed with the rules regarding direct and circumstantial evidence. No prospective juror who was selected to serve as a juror or alternate expressed a similar opinion. Lovely notes that several seated jurors disagreed with propositions of law in a manner that favored the prosecution. But A.J. is not similar to those prospective jurors, because the nature of her disagreement with the law is not revealed on this record.

G.C. answered affirmatively to question 49, whether racial prejudice has affected his life in any way. No other juror answered similarly. As we have noted, this question relates to the jurors personal experience, not to his or her membership in an identifiable group.

On the facts of this case, the prosecutor had little to gain by removing African-Americans from the jury. As Lovely notes in a different context, three of the victims and a key witness were African-American. While the prosecutor could reasonably expect to advance her cause by eliminating jurors perceived to be sympathetic to underdogs, she could not reasonably expect to gain by excusing jurors perceived to be sympathetic to her victims and her key witness. This record does not support an inference that the prosecutor excused a juror on the basis of race. (Cornwell, supra, 37 Cal.4th at p. 73.)

II. Destruction of Juror Questionnaires

Defendants contend they have been deprived of meaningful appellate review of their Wheeler/Batson claims, because the trial court destroyed the questionnaires of the prospective jurors who were not selected. We are not convinced.

Background

We granted Lovelys motion to augment the record on appeal with the jury questionnaires for all jurors who served and all prospective jurors who were excused pursuant to peremptory challenges. The questionnaires completed by the jurors and alternates who served are part of the record on appeal. However, the courtroom clerk submitted a declaration advising this court and counsel that [i]t is the procedure of the Superior Court of California, County of Sacramento, not to keep prospective juror questionnaires after a jury is sworn. After a jury has been sworn all prospective juror questionnaires are shredded.

The prosecutor and both defense counsel stipulated that they did not retain copies of the questionnaires and cannot recall the contents with enough specificity to permit their reconstruction. Accordingly, the trial court found it was not possible to settle the record in regard to the jury questionnaires for the prospective jurors.

Analysis

Defendants contend it is necessary to review the questionnaires of A.J. and G.C. They reason the questionnaires may have contained information suggesting that A.J. and G.C. would have been fair jurors. However, trial counsel had the opportunity to, and did, bring to the trial courts attention other responses that counsel believed showed that A.J. and G.C. could be fair jurors. These matters are reflected in the reported hearings on the peremptory challenges. There is an adequate record for review of a Wheeler/Batson claim where material from the now lost items survives in the reporters and clerks transcripts through quotation and paraphrase. (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8.) Defendants do not contend their trial counsel overlooked other favorable information in the questionnaires, and we decline to so speculate.

III. Sufficiency of Evidence: Lovelys Prior Serious Felony Conviction

Defendant Lovely contends there is insufficient evidence to support the trial courts finding that his third prior serious felony conviction was true. We disagree.

The first amended information alleged that on September 15, 1988, in Alameda County Superior Court, Lovely was convicted of the crime of lewd act upon a child in violation of Section 288[, subdivision] (a) of the Penal Code. To prove this allegation, the prosecutor submitted defendants prison packet pursuant to section 969b. The prison packet contains an abstract of judgment from the court in question on the date alleged. However, the offense is listed as oral cop w/force, a violation of section 288a(c) [sic], not a violation of section 288(a) as alleged in the present information. Nevertheless, the trial court found, As to [defendant] Lovely, each and every prior conviction alleged in the Information, I find the truth and validity of each and every prior conviction to be true beyond a reasonable doubt.

Lovely does not dispute that he was previously convicted of forcible oral copulation, which he concedes is both a violent felony and a strike. He simply argues that the allegation in the information was incorrect and was not proven as alleged. The Attorney General responds that the case is one of immaterial variance. We agree with the Attorney General.

Under the generally accepted rule in criminal law a variance is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense. (In re Michael D. (2002) 100 Cal.App.4th 115, 128.) Lovely does not contend that the information provided inadequate notice of the charges or that the variance affected his defense. Nor does he claim any likelihood of second jeopardy. Because the variance was immaterial, Lovely was not prejudiced and is not entitled to reversal. (Ibid.)

IV. Imposition of Upper Term and Consecutive Sentences

Defendants contend the trial court imposed upper terms of imprisonment and consecutive sentences in violation of Apprendi, Blakely and Booker.^[14] They acknowledge that the California Supreme Court rejected both aspects of their claim in People v. Black (2005) 35 Cal.4th 1238 at page 1244 (Black I), later vacated sub nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].

After briefing in defendants case was completed, the United States Supreme Court held in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] that under Californias determinate sentencing law the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. Thus, 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. (Cunningham, at p. ___ [166 L.Ed.2d at p. 864], overruling Black I, supra, 35 Cal.4th 1238 on this point.) The court reiterated that: 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. (Cunningham, at p. ___ [166 L.Ed.2d at p. 873].)^[15]

No Forfeiture

The Attorney General first asserts that defendants have forfeited the issue because they did not raise it in the trial court. The Attorney General is incorrect.

Defendants were sentenced on July 18, 2005. Before that, on June 20, 2005, our Supreme Court had decided Black I, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term or a consecutive sentence. (Black I, supra, 35 Cal.4th at p. 1244.) Defendants were not required to make a futile objection. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.) Our conclusion makes it unnecessary to consider Lovelys claim that his trial counsel was ineffective for having failed to preserve his Blakely claim.

Consecutive Sentences

Cunningham did not address whether the decision to run separate sentences concurrently or consecutively must be made by the jury. On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that imposition of consecutive terms under section 669 does not implicate a defendants Sixth Amendment rights. (People v. Black (2007) 41 Cal.4th 799, 821 (Black II).) We are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, defendants constitutional rights were not violated when the trial court imposed consecutive sentences.

Upper Term Sentences

As noted, the upper term was selected because the manner in which the crimes were carried out indicates planning, and because each defendant has engaged in violent conduct, is a serious danger to society, and has a criminal record that is significant.

In Black II, the California Supreme Court considered whether imposing the upper term violated the defendants Sixth Amendment right to a jury trial. The court concluded that under Californias determinate sentencing law, a defendant is eligible to receive the upper term so long as one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely.^[16] (Black II, supra, 41 Cal.4th at p. 813, italics added.) Thus, if one aggravating circumstance has been established in accordance with Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum for Sixth Amendment purposes. (Black II, at p. 813.)

The Black II court also noted that the United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[,] [citations] [and that] [r]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Black II, supra,41 Cal.4th at p. 818.) Because Black had a prior conviction, the court reasoned that he was not legally entitled to the middle term and, consequently, could be sentenced to the upper term without violating his Sixth Amendment rights. (Id. at p. 820.)

Black II also concluded that when 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,41 Cal.4th at p. 813.)

Here, one of the factors on which the court relied in imposing the upper term was that each defendant has a criminal record that is significant. Its conclusion is supported by the probation report that lists defendant Lovelys seven prior felony convictions and numerous misdemeanor convictions as an adult. The probation report for defendant Matthews lists his six prior felony convictions.

As in Black II, since defendants had sustained prior convictions, they were not legally entitled to the middle term and the trial court properly relied on their prior convictions when it imposed the upper terms. (Black II, supra,41 Cal.4th at p. 820.) Although the trial court did state aggravating circumstances unrelated to defendants prior convictions, Black II makes clear that a trial court does not violate a defendants constitutional rights by relying on aggravating circumstances other than the defendants recidivism. (Id. at p. 813.) We conclude that defendants sentences did not violate their Sixth Amendment rights under Cunningham and Blakely.

DISPOSITION

Defendants convictions are affirmed.

BUTZ , J.

We concur:

HULL, Acting P. J.

ROBIE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] Second degree robbery is punishable by imprisonment for two, three, or five years. ( 213, subd. (a)(2).)

^[3]People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69].

^[4] G.C. was referring to question 55, which read in relevant part: Have you or any member of your family ever shot a gun?

^[5] This was question 49, which read in relevant part: Has the issue of racial prejudice affected your life in any way.

^[6] The first of two consecutive questions numbered 46 read: The law recognizes two kinds of evidence: Direct evidence which, if found to be true, directly proves a fact; and Circumstantial evidence which, if found to be true, proves a fact from which an inference can be drawn as to the existence of another fact. Both types of evidence are equally acceptable as a means of proving facts, and neither is entitled to any greater weight than the other. [] a. Do you have any disagreement with this rule of law? ___ Yes ___ No. [] b. Can you follow it? ___ Yes ___ No. [] If your answer is no, please explain:_______________. The second question 46 dealt with willingness to return a verdict in favor of the prosecution.

^[7] It appears counsel was referring to part a of question 46, not 8. (See fn. 6, ante.)

^[8] In fact, questions 34 and 37 did not involve circumstantial evidence. The first question enumerated 46 on page 12 did.

^[9] Page 13 of the questionnaire included five questions about race and ethnicity.

^[10]Again, question 49 read in relevant part: Has the issue of racial prejudice affected your life in any way?

^[11]An alternate juror was selected to replace Juror No. 7 during trial. Thus, the issue as to G.C. is not moot.

^[12]Question 52 read in relevant part: Would you automatically believe or disbelieve the testimony of a witness of a particular race or ethnicity simply because he or she is a person of that particular race or ethnicity?

^[13]We assume without deciding that comparative juror analysis is properly undertaken for the first time on appeal in a case in which the trial court effectively found that the defense had not established a prima facie case. (But see People v. Guerra (2006)37 Cal.4th 1067, 1104.)

^[14]Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621].

^[15]No party submitted supplemental briefing following the high courts decision in Cunningham.

^[16]In Blakely, the United States Supreme Court reiterated and applied the rule it outlined in Apprendi: Other 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. (Blakely, supra, 542 U.S. at p. 301 [159 L.Ed.2d at p. 412], quoting Apprendi, supra,530 U.S. at p. 490 [147 L.Ed.2d at p. 455].)