P. v. Fullbright

Filed 8/24/07 P. v. Fullbright CA4/1

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

In June 2005 a jury found Norman Lionel Fullbright guilty of first degree murder (Pen. Code,^[1] 187, subd. (a); count 1), possession of forged items ( 475, subd. (a); count 2), resisting a peace officer ( 148, subd. (a)(1); count 3), and three counts of battery on a peace officer ( 243, subd. (b); counts 4-6). On the count 1 murder charge the jury also found that Fullbright personally and intentionally discharged a shotgun within the meaning of section 12022.53, subdivision (d). The court sentenced Fullbright to a prison term of 50 years to life, plus three years, consisting of a term of 25 years to life on count 1, a consecutive 25 year-to-life term for the personal use of a shotgun allegation, and an upper term of three years on count 2.

On appeal Fullbright asserts that (1) the court erred under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) by admitting an affidavit the victim gave to police describing a previous domestic violence assault Fullbright committed against the victim as it violated his Sixth Amendment right to confront witnesses; (2) the court erred in instructing the jury under CALJIC No. 4.51; (3) the court erred by refusing to sever the resisting arrest and battery upon a peace officer counts; (4) the prosecutor committed prejudicial misconduct by speculating as to what the victim would have said if she had testified; and (5) under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham), he was entitled to a jury trial on the factors used by the court to impose the upper term on count 2.

In an unpublished opinion filed June 29, 2007 (People v. Fullbright (D048113), we concluded the court erred in utilizing factors not found by a jury and not admitted by Fullbright in imposing an upper term sentence on count 2, and remanded the matter for resentencing on that count only. In all other respects, the judgment was affirmed. On July 30, 2007, we granted rehearing on our own motion to determine the effect of the California Supreme Court's decision in People v. Black (July 19, 2007) __ Cal.4th __ [2007 WL 2050875] (Black II) upon our conclusion that the court erred in sentencing Fullbright to an upper term sentence on count 2. As this opinion at part V explains, based upon on the holding of the Black decision we conclude that the court did not err in sentencing Fullbright to the upper term on count 2 and therefore affirm the judgment in its entirety.

FACTUAL BACKGROUND

A. People's Case

Fullbright, whose nickname was "Little Suddy," and the victim, Rose Pradd, were involved in a volatile romantic relationship. In February 2003 Fullbright physically abused Pradd, who reported the abuse to police. Police arrested Fullbright, who went to jail and remained there until July 2003. Upon his release, Fullbright and Pradd resumed their relationship. However, Fullbright did not forgive her for putting him in jail.

By November their relationship had deteriorated and he again beat her. The day of the beating, Pradd's uncle, Robert Mounger, saw bruises and marks on her caused by Fullbright. Mounger called Fullbright and confronted him about the abuse. Fullbright replied that Pradd "got what she had coming." On Mounger's advice, Pradd reported the abuse to police. She wrote a domestic abuse declaration that stated: "On Thursday the 13th [at] approximately 11:00 a.m. I, [Pradd], and [Fullbright] were lying on my bed in my room playing, slapping each other like we have done in the past playing. [Fullbright] said I hit him too hard, and . . . so he slapped me and started punching me with his closed fist in my head. I tried to defend myself, but he hits [sic] me in the ear, and I fell on the bed. He then [dragged] me off the bed saying, 'Bitch. You put me in jail.' I was away from my kids at this point. He [was] kicking me in my back and socking me in my arms. After the fight I [grabbed] my keys and coat and headed for the door, and he grabbed me and said, 'You're not going anywhere.'" The police then prepared an arrest report for Fullbright.

Fullbright learned that Pradd had reported the abuse to police. On November 20, 2003, he called her. Pradd's cousin, Cecily Simpkins, answered the phone. Fullbright, thinking he was speaking to Pradd, said, "You think it's funny. You think it's a fucking game. . . . I'm going to kill you bitch."

In the early morning hours of November 22, 2003, Pradd and her two 11-year-old daughters, Laquisha and Shaquila, had fallen asleep in their front living room. They were awakened by a loud crashing sound coming from the back of the apartment. Pradd went outside to investigate.

Pradd quickly returned, locked the door, and said, "Lionel's got a gun." Lionel is Fullbright's middle name.She told her daughters to hide. As she was going to the back bedroom to hide, Shaquila saw Fullbright, wearing gloves and with a gun in his hand, break the living room window. She saw his head and recognized him by his braids.

Pradd said to the police dispatcher, "[T]hey've got a gun. . . . He's right here. I see him right there. He's right there. Oh Lord! He's right there . . . . [H]e's got a gun right there in the house. He's coming in . . . . [R]ight now he's coming in!" The dispatcher then heard gunshots.

Laquisha climbed into the bathtub of a walk-through bathroom that connected the front and back bedrooms. Shaquila crawled under the bed in the back bedroom. As Fullbright entered the apartment, Pradd dropped the phone and ran toward the back bedroom. Fullbright walked through the bathroom into the back bedroom and shot Pradd once in the chest area and a second time in the face at close range. After Fullbright shot Pradd, he walked back through the bathroom and out into the kitchen area.

When she was in the bathtub hiding behind the shower curtain, Laquisha saw Fullbright in the bedroom and then when he was in the second bathroom. He was approximately four to five feet away. She did not see his face but recognized him from his braids and blue rubber bands in his hair. Laquisha also got a better look at Fullbright when he walked past the shower where she was hiding. He was about three feet away. As he walked past her, she saw the side of his face. He was wearing a leather coat and black leather gloves and had a gun in his hand. She recognized the jacket as one she had seen him wear before.

After Fullbright left the bathroom, Laquisha locked the door, went to the back bedroom, and sat next to her mother's body for a moment. She then crawled under the bed with her sister, Shaquila. They heard Fullbright open and close some kitchen cabinets and then heard the voice of Fullbright's best friend, Ameer Roby, say to Fullbright, "Little Suddy, come on."

Police arrived within minutes of Pradd's call, but Fullbright was gone. They found a sawed-off shotgun in the bedroom. They found a crowbar outside the bedroom window. Laquisha and Shaquila were terrified and crying uncontrollably. They each told police that Fullbright had broken into the apartment and shot Pradd. Laquisha told police that she saw Fullbright's head from behind the shower curtain and recognized his braids. She also told them she recognized the jacket he was wearing.

Fullbright, who knew police were looking for him, fled to Arizona the next day. Police were able to apprehend Fullbright on Christmas Day, while he was visiting his aunt. When police tried to arrest him, he ran and refused to obey police commands to stop and get down on the ground. After running and jumping over several fences, police caught up with Fullbright and arrested him. When they arrested him, police found him in possession of $1,140 in counterfeit currency.

Three days later, Fullbright attempted to commit suicide in his jail cell by slashing his wrists with a razor. When sheriff's deputies tried to render aid, he told them he did not want to live. When they tried to get him off his bunk, he became belligerent, kicking one deputy, punching a second, and biting a third.

B. Defense Case

Fullbright attempted to impeach Laquisha's and Shaquila's testimony by highlighting small discrepancies between their account of the murder given to police and their testimony at trial.

The defense called psychologist Thomas MacSpeiden, who testified at length about the inaccuracies of eyewitness identification. He stated that interviews conducted after the event can alter a witness's memory. Witnesses are more likely to see something they are expecting even when it is not there. Distance, lighting, stress, duration, and weapon focus all affect the witness's ability to observe. There is no correlation between how certain a witness is about the identification and how accurate the identification is.

The night Pradd was murdered, neighbor Jeffrey South heard two shots and saw a vehicle with two occupants speed away. South examined photographs of Fullbright and Roby, but could not make a positive identification for either. Roby's girlfriend, Melody Polanco, testified that Roby was with her the night Pradd was murdered. She picked him up at 8:00 p.m. and he spent the night with her.

Fullbright's demeanor was calm when he called his cousin, Dionne Henriquez, at 1:10 a.m., shortly before Pradd was killed. His demeanor was also normal when he called his aunt, Gladys Carty, at 1:31 a.m., shortly after the murder and asked to come over. He arrived at Carty's house five minutes later. When he arrived, Carty did not see any blood on him, nor any bruises or scratches. A fingerprint on Pradd's window screen did not belong to Fullbright, Roby, or Pradd. The police did not retrieve any messages from Pradd's answering machine. When police tested blood found on a doorknob, they found Pradd's DNA and the DNA of a third party that was not Fullbright or Roby.

DISCUSSION

I. CRAWFORD

A. Background

As described, ante, Pradd prepared a sworn affidavit at the police station on November 16, 2003, describing in detail how Fullbright had attacked her three days earlier, on November 13, 2003. Prior to trial the prosecution sought to introduce the affidavit into evidence. The prosecutor conceded the affidavit was testimonial under Crawford. However, the prosecutor argued that it was not offered for the truth of the matter asserted, but to show Pradd's state of mind, i.e., that she had actually made a report to police. The defense filed a motion in limine seeking to exclude the affidavit on the ground that it was testimonial in nature and therefore violated Fullbright's right to confront and cross-examine witnesses under Crawford. The court allowed introduction of the affidavit for the nonhearsay purpose of showing that Pratt had reported the abuse to police.

B. Analysis

The Sixth Amendment's confrontation clause (U.S. Const., 6th Amend.) provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Historically, this clause had been held to preclude the admission of hearsay statements implicating the defendant in a criminal proceeding unless the prosecution demonstrated that the statements possessed "adequate indicia of reliability." (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1373.) To meet that test, the United States Supreme Court in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts) held that evidence of an unavailable witness's statements either had to fall within a "firmly rooted hearsay exception" to the hearsay rule or bear "particularized guarantees of trustworthiness." (Id. at p. 66; People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8.)^[2]

The United States Supreme Court overruled Roberts in Crawford, supra, 541 U.S. 36. "In overruling Roberts, Crawford held that out-of-court statements by a witness that are testimonial are barred under the Sixth Amendment's confrontation clause unless the witness is shown to be unavailable and the defendant has had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the trial court. 'Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability."  . . .  To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.' [Citation.]" (People v. Monterroso (2004) 34 Cal.4th 743, 763-764.)

Although the court in Crawford declined to "spell out a comprehensive definition of 'testimonial'" (Crawford, supra, 541 U.S. at p. 68, fn. omitted), "it did list '[v]arious formulations' of the class of testimonial statements: '"[E]x parte in-court testimony or its functional equivalent─that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," [citation]; "extrajudicial statements . . . contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions," [citation]; "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," [citation].' [Citation.]" (People v. Sisavath (2004) 118 Cal.App.4th 1396, 1401, second & third italics added.)

The court in Crawford further explained that "[w]hatever else the term covers, [testimonial] applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Crawford, supra, 541 U.S. at p. 68.) "Crawford observed these modern practices were close kin to the abuses at which the Confrontation Clause was directed." (People v. Cervantes, supra, 118 Cal.App.4th at p. 172.) "The court used the term '"interrogation"' in 'its colloquial, rather than any technical legal, sense.' It reasoned that the statement at issue in [that] case was 'knowingly given in response to structured police questioning' and consequently 'qualifie[d] under any conceivable definition.' [Citation.]" (People v. Sisavath, supra, 118 Cal.App.4th at p. 1402.)

The Supreme Court also noted that the history of the confrontation clause "suggests that not all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted." (Crawford, supra, 541 U.S. at p. 51.) The court further recognized that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay lawas does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." (Crawford, supra, 541 U.S. at p. 68.) The court declined to resolve the issue of whether the confrontation clause applies to nontestimonial hearsay. (Id. at p. 56.) A state court thus may consider "reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue [is] not testimonial. [Citation.]" (Id. at p. 57.)

Moreover, the court in Crawford explained that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements." (Crawford, supra, 541 U.S. at p. 59, fn. 9.) In addition, the confrontation "[c]lause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Crawford, supra, 541 U.S. at p. 59, fn. 9)

Recently, in People v. Cage (2007) 40 Cal.4th 965 our Supreme Court addressed the application of Crawford to a domestic violence victim's statements to his physician and police at a hospital where he was being treated for his wounds. The high court determined that his statements to the police officer, in response to the officer's question regarding "what [had] happened between [him] and the defendant" (Cage, supra, at p. 985) were testimonial under Crawford. The court reached this conclusion because the victim's statements "were made in response to focused police questioning whose primary purpose, objectively considered, was not to deal with an ongoing emergency, but to investigate the circumstances of a crime . . . ." (Id. at p. 970.)

However, the Supreme Court also concluded that the statement's admission as evidence at trial was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18.The court reached this conclusion because of the overwhelming evidence of the defendant's guilt, and because the statements were largely cumulative of other evidence at trial. (People v. Cage, supra, at pp. 991-992].)

In the instant case, the parties do not dispute that Pradd's domestic violence affidavit was testimonial under Crawford. However, the People assert that it was properly admitted because it was not offered for the truth of the matter asserted, but for the nonhearsay purpose of showing that Pradd filed the document with police, establishing a motive on the part of Fullbright to kill Pradd. Further, the People assert that even if the statement does not fall within a recognized hearsay exception, any error was harmless beyond a reasonable doubt under Chapman. We conclude that the domestic violence affidavit was testimonial hearsay that was admitted in violation of Crawford, but that the error was harmless beyond a reasonable doubt.

The People cite no authority for the proposition that the admission of an affidavit providing a detailed account of a previous incident of domestic violence can be admitted for the nonhearsay purpose of showing simply that the report was made. It appears that the People are relying on the "fresh complaint" hearsay exception, whereby it is permissible to admit evidence of a complaint to police "for a limited, nonhearsay purpose─namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others─whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred." (People v. Brown (1994) 8 Cal.4th 746, 749-750.) However, to come within that exception, the evidence must be "carefully limited to the fact that a complaint was made, and to the circumstances surrounding the making of the complaint, thereby eliminating or at least minimizing the risk that the jury will rely upon the evidence for an impermissible hearsay purpose." (Id. at p. 762.) "Caution in this regard is particularly important because, if the details of the victim's extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge . . . [citation], thereby converting the victim's statement into a hearsay assertion [citation]." (Id. at p. 763.)

In this case the court did not simply admit into evidence that fact Pradd had reported a domestic abuse assault, but admitted a detailed statement describing the actions of Fullbright. As such, it was impermissible hearsay as the jury would likely have viewed these details as tending to prove both the prior domestic violence incident and the current charges.

However, the court's error in admitting Pradd's affidavit was harmless beyond a reasonable doubt because of the overwhelming evidence of Fullbright's guilt. Before she was killed, Pradd identified Fullbright as the person entering her apartment.Pradd's daughters gave eyewitness accounts that Fullbright committed the murder. Before Fullbright left, they heard the voice of Fullbright's best friend, Roby, say to Fullbright, "Little Suddy, come on." The jury received evidence placing Fullbright near the scene of the crime immediately before and after the murder. There was substantial evidence of Fullbright's consciousness of guilt, including his flight to Arizona shortly after the murder, his attempt to escape from police when they apprehended him, and his attempted suicide in jail.

Further, the affidavit was not unduly prejudicial because it did not implicate him directly in the current crime, but only a prior domestic violence incident. Moreover, it was cumulative of other properly admitted evidence of Fullbright's domestic abuse committed against Pradd. In sum, we conclude that the court's erroneous admission of Pradd's domestic violence affidavit was harmless beyond a reasonable doubt.

II. CALJIC NO. 4.51

A. Background

Fullbright requested the court instruct the jury under CALJIC Nos. 4.50 (alibi instruction) and 4.51 (liability through aiding and abetting or conspiracy despite alibi) because his defense was that he was not present at the time of the murder. The prosecutor objected, arguing that the evidence did not support an alibi defense. The court agreed to give those instructions, finding that there was sufficient evidence to support them.

However, shortly before the court read the jury instructions to the jury, Fullbright objected to the court giving CALJIC No. 4.51. Counsel for Fullbright asserted that the evidence did not support a theory that he aided and abetted some unknown third party in the commission of the murder. The court noted that Fullbright's phone call to Pradd the day before the murder, wherein he threatened to kill her, presented evidence from which a jury could infer that if he was not at Pradd's apartment at the time of the murder, he was part of a conspiracy or aided someone in killing Pradd.

The court instructed the jury under CALJIC No. 4.50, which provides:

"The defendant in this case has introduced evidence for the purpose of showing that [he] [she] was not present at the time and place of the commission of the alleged crime for which [he] [she] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find [him] [her] not guilty."

The court also instructed the jury under CALJIC No. 4.51, which provides:

"[However, if] [If] the evidence establishes beyond a reasonable doubt that the defendant [aided and abetted the commission of] [or] [was a co-conspirator in the commission of] the crime charged in this case, the fact, if it is a fact, that [he] [she] was not present at the time and place of the commission of the alleged crime for which [he] [she] is being tried does not matter and does not, in and of itself, entitle the defendant to an acquittal."

B. Analysis

Because Fullbright requested CALJIC No. 4.50, the alibi instruction, based upon his defense that he was not present at the murder, the court properly instructed the jury with CALJIC No. 4.51, which told them that even if he was not there, he could be held liable if he aided and abetted or conspired to commit the crime. If the jury believed his alibi defense, they also could have believed that he directed or planned the shooting. Fullbright threatened to kill Pradd the day before her murder. Roby, Fullbright's best friend, was identified as being present at the murder scene. This evidence could have raised an inference that Fullbright, even if not present, participated in the murder plot.

Fullbright asserts, and the People agree, that even if the court properly instructed the jury under CALJIC No. 4.51, it erred in failing to define conspiracy and aiding and abetting. (See People v. Sarkis (1990) 222 Cal.App.3d 23, 27-28.) However, the error was harmless beyond a reasonable doubt. (Id. at p. 28.)

The record demonstrates beyond a reasonable doubt that the jury rejected Fullbright's alibi defense. The jury found that he personally used and discharged a firearm to kill Pradd. As the jury was instructed, in order to find true the personal gun use enhancement under section 12022.53, subdivision (d), it had to find that Fullbright himself personally discharged the firearm. (CALJIC No. 17.19.5.) The jury would not have made this finding if they believed Fullbright's defense that he was not present at the time of Pradd's murder.

III. SEVERANCE OF RESISTING ARREST AND ASSAULT CHARGES

A. Background

Prior to trial, Fullbright brought a motion to sever the forgery count, the resisting arrest count, and the three misdemeanor battery on a police officer counts from the murder count. The court granted the motion as to the forgery charge. However, the court found that the charges arising from Fullbright's conduct while in jail were relevant to his consciousness of guilt and denied the motion as to those counts.

B. Standard of Review

Generally, an order consolidating charges for trial is reviewed for abuse of discretion. (People v. Osband (1996) 13 Cal.4th 622, 666.) "A court abuses its discretion when its ruling 'falls outside the bounds of reason.' [Citation.]" (Ibid.)

C. Analysis

Section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses, under separate counts . . . provided that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." The joinder of such related charges "' . . . ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 409, fn. omitted.)

The joinder of the battery on a peace officer charges (counts 4, 5 & 6) with the first degree murder charge (count 1) under section 954 was therefore appropriate and preferred unless Fullbright can make "a clear showing of potential prejudice" (People v. Bradford (1997) 15 Cal.4th 1229, 1315) due to the consolidation of such properly joined counts.

Whether joinder of properly joined counts would cause prejudice depends on the circumstances of each case, "but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.) The denial of a severance motion "may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]" (People v. Sandoval (1992) 4 Cal.4th 155, 172-173, distinguished on another point in People v. Lewis (2001) 26 Cal.4th 334, 390.) These criteria, however, are not "equally significant." (People v. Bradford, supra, 15 Cal.4th at p. 1315.) "'[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible . . . in separate trials on the others. If so, any inference of prejudice is dispelled.' [Citations.]" (Id. at pp. 1315-1316.)

The People argue that evidence of the battery crimes occurring while he was in jail would have been cross-admissible in the murder case as they showed consciousness of guilt. However, the People acknowledge that the murder charge might not have been admissible at a separate trial on the battery charges. We need not resolve this issue because, while cross-admissibility suffices to negate prejudice, "it is not essential for that purpose. Although the '"[Supreme Court has] held that cross-admissibility ordinarily dispels any inference of prejudice, [it has] never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice."' [Citation.]" (People v. Bradford, supra, 15 Cal.4th at p. 1316.) Further, section 954.1, enacted with the passage of Proposition 115 in 1990, "expressly permits joinder of offenses even when the evidence is not cross-admissible." (People v. Hill (1995) 34 Cal.App.4th 727, 734-735, fn. omitted.) Thus, unless Fulbright can show prejudice under the other factors to be considered, the denial of his severance motion was not error.

The facts underlying counts 4, 5, and 6 were not more likely to inflame a jury than the facts underlying count 1. Nor was this a capital case or rendered one because of the joinder of the counts. Thus, even if the there were no cross-admissibility, the potential prejudice Fullbright asserts does not rise to the level of demonstrating that the court's denial of severance was an abuse of discretion. (People v. Sandoval, supra, 4 Cal.4th at pp. 172-173.)

Fullbright asserts that the identity evidence for the battery counts would have bolstered the assertedly weak identity evidence on the murder counts. However, this ignores the fact that because the evidence underlying the battery claims showed a consciousness of guilt on the part of Fullbright after he was arrested for murdering Pradd, it would have been admissible in the murder trial precisely because it was relevant to prove his identity as the perpetrator of the murder. (People v. Wilson(2005) 36 Cal.4th 309, 328 [a defendant's consciousness of guilt is probative of his identity as the perpetrator of the charged offense].)

Fullbright also contends that the evidence of the battery offenses unduly prejudiced him by informing the jury of his custody status. However, the trial took place a year and a half after the battery offenses in jail. There is nothing in the record to suggest that Fullbright was shackled or dressed in jail clothing during the trial and, hence, his custodial status at the time of trial was never before the jury.

In sum, Fullbright simply cannot meet his burden of showing "there [was] a substantial danger of prejudice requiring that the charges be separately tried." (People v. Bean (1988) 46 Cal.3d 919, 938.)

IV. PROSECUTORIAL MISCONDUCT

Fullbright asserts that the prosecutor committed prejudicial misconduct during closing arguments by "speculating about what Pradd was thinking and saying shortly before she was killed." We reject this contention.

A. Background

During closing argument, the prosecutor, trying to explain cell phone records that showed Pradd had called Fullbright in the days preceding her murder, stated the following:

"There are a number of calls that [Pradd] made to [Fullbright's] cell phone. She had gotten beat up by him. She had called the police on him. November 17th, 10:00 in the morning, [Mounger] got into a confrontation with him. Why would she call him on the phone? You have to remember that they had a relationship. There was an instance where he beat her up before in February, and she still spoke to him. And then there's another incident in November, this . . . November 16th report and she's still calling him. [] There's a saying that goes like this, keep your friends close. Keep you enemies closer. Perhaps [Pradd] was the best one to know what [Fullbright] was capable of. Perhaps she was calling him to tell him, please calm down. Perhaps she was insuring--"

Fullbright's counsel at that moment objected to the argument as improper. The court overruled the objection and admonished the jury that "the attorneys are allowed to give . . . what they believe to be a reasonable inference from the evidence." The court also admonished the jury that they were the trier of fact and were free to accept or reject the attorneys' inferences.

The prosecutor then continued the argument, stating:

"[Pradd] is calling [Fullbright], and she's saying something to him either calm down or perhaps she's saying, I'm not going to back down this time. I'm going to go there with it. I'm not going to back down, but we know the last voice [mail] message to [Fullbright's] cell phone was November 21st at 12:15 in the morning, [a] 43 second message that went to voice mail. That's . . . 25 hours before the murder."

B. Analysis

A broad scope of permissible argument is allowed: "'"'[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]'"'" (Peoplev.Hill (1998) 17 Cal.4th 800, 819.)

Federal constitutional rights are implicated by prosecutorial misconduct only if it is "'"so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" (Peoplev.Gionis (1995) 9 Cal.4th 1196, 1214.) "'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" [Citation.]' [Citation.]" (Peoplev.Hill, supra, 17 Cal.4th at p. 819.)

Here, there was no prosecutorial misconduct. Under federal standards, Fullbright cannot show a pattern of conduct so egregious that it infected the trial with fundamental unfairness. Considering the prosecutor's argument took up nearly 30 pages of the reporter's transcript, the three paragraphs Fullbright objected to, consisting of less than a page, cannot be considered a pattern of egregious conduct.

Further, Fullbright cannot show under state standards that the prosecutor deceived the jury by some reprehensible method. The prosecutor's argument was designed to draw a reasonable inference as to the nature of Pradd's conversations with Fullbright shortly before he killed her, including the fact that Pradd had a relationship with Fullbright, which would explain why she called him despite his abuse. Further, the court admonished the jury that the prosecutor's arguments were not evidence and that the jurors were free to reject any inferences they deemed to be unreasonable.

The prosecutor did not engage in misconduct under either federal or state standards.

V. CUNNINGHAM ERROR

Fullbright asserts that the court erred in imposing the upper term on his count 2 forgery conviction because under Cunningham, supra, ___ U.S. ___ [127 S.Ct. 856],he was entitled to a jury trial on the factors used by the court to impose the upper term. Based upon the California Supreme Court's holding in Black II, supra, __ Cal.4th __ [2007 WL 2050875], we conclude that the court did not erred in imposing an upper term sentence based upon aggravating factors not found by a jury or admitted by Fullbright.

A. Background

At the sentencing hearing, counsel for Fullbright asked that the court consider imposing the middle or low term on the forgery conviction. However, the court decided to impose the upper term for the following stated reasons:

"The . . . count as it relates to the forgery is a separate and distinct offense. Based on the defendant's prior criminal history, almost every offense─not every one─but almost every offense involved the carrying or use of a weapon, one time a sawed-off shotgun, I believe, justifies the upper term."

B. Analysis

In Cunningham, the United States Supreme Court concluded California's determinate sentencing law (DSL) violates a criminal defendant's federal constitutional rights to a jury trial and proof beyond reasonable doubt to the extent it allowed a judge to find a fact that "exposes a [criminal] defendant to a greater potential sentence" by a mere preponderance of the evidence. (Cunningham, supra, 127 S.Ct. at pp. 863-864.) Thus, California's DSL violated the bright line rule in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 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."

The Supreme Court of the United States first enunciated the recidivist exception─a judge may find true a prior conviction and accordingly increase the sentencing penalty beyond the prescribed statutory maximum─in Almendarez-Torresv. United States (1998) 523 U.S. 224, 239-247. It reaffirmed the exception in Cunningham, supra, 127 S.Ct. at page 864. Moreover, this exception is not limited to the mere existence of prior convictions; the court may find true "matters involving the more broadly framed issue of 'recidivism.'" (People v. Thomas (2001) 91 Cal.App.4th 212, 221 (Thomas); see also People v. McGee (2006) 38 Cal.4th 682, 707 [courts are not precluded from "making sentencing determinations related to a defendant's recidivism"].)

The rationale for the recidivist exception is twofold. First, the finding of recidivist factors has long been treated as falling within the purview of the sentencing court. (See Thomas, supra, 91 Cal.App.4th at pp. 215-222.) Second, the court is not required to engage in fact finding beyond a review of written evidence in the record concerning facts not related to the commission of the instant offense. (See Almendarez-Torres, supra, 523 U.S. at p. 244.) Such written evidence includes information found in abstracts of judgments, probationary reports, and Department of Corrections and Rehabilitation documents which "have the constitutional requisite level of reliability so as to meet any pertinent due process concerns." (Thomas, supra, 91 Cal.App.4th at p. 223.)

Thus, when a court increases a criminal defendant's sentencing penalty because of prior convictions, probationary status, or unsatisfactory prior performance on probation, it is making a determination based on recidivist behavior gathered from reliable sources and unrelated to the commission of the instant offense. Therefore, these are facts that can properly be found by a judge within the bounds of the recidivist exception. (See People v. McGee, supra, 38 Cal.4th at p. 709 [under the recidivist exception, it was proper for the court to determine whether defendant's Nevada convictions qualified as strikes under California law].)

Here, the court did not limit its consideration solely to the numerosity of Fullbright's prior convictions or other properly considered recidivist factors. Rather, the court also conducted a qualitative analysis of his criminal record, citing the fact that almost all of his prior convictions involved the carrying or use of a weapon. In Black II, supra, __ Cal.4th __ [2007 WL 2050875], at page 6, our Supreme Court held that an upper term sentence based upon at least one aggravating factor complying with Cunningham "renders a defendant eligible for the upper term sentence," so that "any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to a jury trial." Thus, in imposing the upper term on count 2, the trial did not violate Fullbright's right to a jury trial when, in addition to considering his recidivism, it also considered the nature of the prior crimes he committed. Accordingly, we affirm the court's sentence imposing the upper term on count 2.

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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

^[2] Some "'firmly rooted' exceptions to the hearsay rule include (1) statements by a coconspirator during and in furtherance of the conspiracy, Bourjaily v. United States (1987) 483 U.S. 171, 183-184 . . . ; (2) excited utterances, White v. Illinois (1992) 502 U.S. 346, 356-357 . . . ; and (3) statements made for purpose of obtaining medical treatment. (Ibid.)" (People v. Cervantes (2004) 118 Cal.App.4th 162, 172, fn. 4.)