P. v. Linton

Filed 8/29/07 P. v. Linton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Eric M. Nakata, Judge. Affirmed.

Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, Sabrina Y. Lane-Erwin, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant guilty of making criminal threats (Pen. Code, 422)^[1](count 1) with the use of a knife ( 12022, subd. (b)(1)); brandishing a deadly weapon ( 417, subd. (a)(1)) (count 2); and battery ( 242) (count 3). As a result, defendant was sentenced to a total term of four years in state prison: the upper term of three years on count 1, plus an additional one year for the knife use enhancement; counts 2 and 3 were ordered time served in county jail. On appeal, defendant contends (1) there was insufficient evidence to support the jurys verdict on count 1; (2) the prosecutor committed misconduct during opening argument and rebuttal; and (3) defendant was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S.Ct. 856, 868] (Cunningham), 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 on count 1. We disagree and affirm the judgment.

I

FACTUAL BACKGROUND

Defendant lived with his wife (Sandra), their children, and their grandchildren. Defendant was a habitual drinker and spent every day under the influence of alcohol. His moods were unpredictable; some days he was nice, and other days he was not. While the children were growing up, defendant physically abused Sandra, and the abuse occurred while the children were present. On one occasion, defendant punched Sandra in the face repeatedly until blood streamed from her wounds. That incident left defendants oldest child, Megan, terrified and upset. Megan had always been afraid of defendant because he hurt people . . . . Indeed, defendant had told his family that he had killed many people while he was in the military.

In a past incident in November 2005, defendant became physically abusive toward Megan when he knocked Megan over and held her head in a trash can. After that, they did not speak to each other.

On January 1, 2006, defendant told Sandra that he was going to shank the cunt, meaning he was going to stab Megan. Though they lived in the same house, Megan and defendant were still not speaking to each other.

On January 3, 2006, defendant, who was already inebriated by 9:30 a.m., approached Megan later that day in the backyard while she was riding a skateboard. In reaction, Megan tried to skate in the opposite direction. However, defendant approached her again, kicked the skateboard out from under her feet, and asked, Do you fear me? Megan responded, No. Defendant, standing about two feet away from Megan, reached into his pocket, pulled out the knife he always carried, held it near his head with the blade pointing toward her, and asked, How about now? Megan was shocked and frightened and began walking backwards. She was also frightened because her children were present. Defendant said several times, while holding the knife, Youre going to die, bitch. He also said: One of us is going to die today. Are you prepared . . . for this? Megan was afraid.

Megan also took defendants threats seriously and kept stepping back until her sisters boyfriend, Benny, stepped in between Megan and defendant and pushed defendant back. In response to the commotion, Megans sister, Erin, ran outside. Erin was afraid when she saw defendant threatening Megan with the knife; defendant had never before threatened a family member with a weapon and had cautioned the family that they should never wield a weapon unless they intended to use it. Erin took defendant into the house while Megan remained outside with her children. Though defendant put the knife in his pocket, he told Erin, Todays the day. Im tired of this.

When defendant walked back outside, Megan was holding a tree branch her son had given her. Defendant, holding his knife, said, Okay, bitch, now we both have sticks. Megan held defendant at bay with the tree branch.

Megan then went into the house to change her sons diaper. As she finished, defendant approached and stood in the doorway. He said, All right. One of us is going to die. When Megan placed her son behind her and tried to push defendant out of her room, he poked her eyes with two of his fingers, leaving her with red eyes and a scratch on her face. In response, Megan ducked through a nearby doorway to avoid him.

On Bennys advice, Megan left the residence to walk to a friends house so that she would not be followed and attacked. As Megan was standing outside, upset and crying and about to leave, Sandra arrived home, and Megan told Sandra what had occurred. Sandra walked into the house and told defendant that she was calling the police because she was tired of him threatening her children. In response, defendant raised his hands as if to gesture, So what? and said, What? What? I told you it was her or I. Sandra called the police. When the police arrived, the knife was in defendants pocket.

II

DISCUSSION

A. Sufficiency of the Evidence

Defendant contends there was insufficient evidence to support the conviction for making a criminal threat in violation of section 422. Specifically, he argues there was no evidence that Megan was in sustained fear of his criminal threats. We disagree.

Our review of any claim of insufficiency of the evidence is limited. In reviewing a claim that the evidence is insufficient to support a conviction, [w]e review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid valid, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859, citing People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)

Given this courts limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction for making a criminal threat. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U. S. 307, 319, 326; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In determining whether substantial evidence exists, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cortes (1999) 71 Cal.App.4th 62, 71; see also People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) The standard of review applies even when the conviction rests primarily on circumstantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

To prove a violation of section 422, the prosecution must show beyond a reasonable doubt the following: (1) defendant willfully threatened to commit a crime that, if committed, would result in death or great bodily injury to another person; (2) he made the threat with the specific intent that it be taken as a threat (whether or not he actually intended to carry out the threat); (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; (4) the threatening statement actually caused the other person to be in sustained fear of his or her own safety or for the safety of his or her immediate family; and (5) the threatened persons fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228; see also 422; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136; People v. Butler (2000) 85 Cal.App.4th 745, 753; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.) We look to all the surrounding circumstances to determine if there was substantial evidence to prove the elements of making a terrorist threat. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340; People v. Brooks (1994) 26 Cal.App.4th 142, 149.)

In the present matter, defendant only challenges the sustained-fear element. He claims Megans descriptions of the events shows that she was never in sustained fear that he would kill her or cause great bodily harm, especially after Benny separated Megan and defendant.

A sustained fear means that the duration of the victims fear extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Fifteen minutes is sufficient. (Ibid.) A sustained fear includes both objective and subjective components: The victims fear must have been reasonable, and it must have been real. (People v. Ortiz (2002) 101 Cal.App.4th 410, 417.) The parties history can be considered as one of the relevant circumstances. (People v. Mendoza, supra, 59 Cal.App.4th at p. 1340.)

The evidence showed that Megan was in fear for her own safety as well as her childrens safety, after defendant threatened to kill her while holding a knife. The uncontradicted evidence demonstrated that defendant had a history of perpetrating physical violence on his wife in front of his children, that defendant spoke about people he had killed while in the military, and that defendant had been physically violent with Megan just two months before the current incident. In addition, defendant had taught his family that they should never pull out a weapon unless they intended to use it. On the day of the incident, defendant reached into his pocket standing about two feet away from Megan, pulled out the knife he always carried, and stated she was going to die. Megan testified that she was shocked and frightened and backed away. She was also frightened because her children were present, and she was afraid of defendant. Indeed, defendant continued to threaten Megan after Benny separated the two and even went to Megans room, where she had just changed her sons diaper, threatened her, and poked her eyes with two of his fingers. Megan was still upset and crying when her mother, Sandra, arrived home when Megan was about to leave. Sandra was so concerned by the threats that she called the police.

Based on the above circumstances and defendants past history with the family, the evidence here was sufficient to show that defendants threats caused Megan to be in a state of sustained fear for her safety, and her fear was reasonable under the circumstances. The jury could have reasonably concluded that Megan actually and reasonably feared that defendant would kill her. The duration of Megans fear was more than fleeting or transitory; it lasted from the time defendant threatened Megan until defendant was arrested. (People v. Allen, supra, 33 Cal.App.4th 1149, 1156.)

Defendants contentions to the contrary are unpersuasive and involve the weighing of the credibility of the witnesses. We remind defendant that it is the sole duty of the trier of fact to judge the credibility of the witnesses and draw reasonable inferences from the evidence. (People v. Hale (1999) 75 Cal.App.4th 94, 105.) Accordingly, viewing the evidence most favorably to the People, we find there was sufficient evidence to support the jurys finding that defendant made a criminal threat.

B. Prosecutorial Misconduct

Defendant next contends the prosecutor committed prosecutorial misconduct during closing arguments by improperly appealing to the jurys passion or prejudice, misstating the law, and arguing the reasonable doubt standard. Defendant acknowledges defense counsel failed to object at trial but asserts ineffective assistance of counsel to avoid a finding of waiver.

Initially, we agree with the People that defendant waived this issue by failing to object to the challenged arguments or to request a curative admonition. (People v. Frye (1998) 18 Cal.4th 894, 969-970.) Notwithstanding the waiver, and to forestall the ineffective assistance of counsel claim, we do not agree there was misconduct. (People v. Navarette (2003) 30 Cal.4th 458, 506.) Even if we were to find misconduct, however, any error was harmless.

Prosecutorial misconduct is reversible error under the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Morales (2001) 25 Cal.4th 34, 44.) A prosecutors conduct that does not make the trial fundamentally unfair is misconduct under California law only if it involves the use of deceptive or reprehensible methods to attempt to persuade the trier of fact. (Ibid.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that the right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35 (Nguyen).) In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.] (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)

It is misconduct for a prosecutor to mischaracterize the evidence (People v. Hill (1998) 17 Cal.4th 800, 823), misstate the law (People v. Bell (1989) 49 Cal.3d 502, 538), or appeal to the passion and sympathies of the jurors by asking them to place themselves in the position of the victim (People v. Pensinger (1991) 52 Cal.3d 1210, 1250). But a reversal requires more. To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. (People v. Brown (2003) 31 Cal.4th 518, 553-554.)

We review separately each of defendants claims of prosecutorial misconduct.

Defendant challenges the following argument of the prosecutor during closing arguments to the jury: Its very unfortunate in these cases where you hear about violence in the family. Why would someone want to hurt their family member? We know it does happen. Weve seen some of that in this courtroom over the past few days, and a lot of people will say, Oh, well, why doesnt anybody do anything? How come there is no intervention? Welcome to the intervention. . . . [] . . . [] And youll hear people often talk about, Oh, the system and the system. Well, on January 3rd, the Linton family put their faith and trust in the system, and they made that call to 911 for help and they did receive help. . . . When they come in and testify as to what they did, they are putting their faith in you for holding him accountable for what happened, because that is the system. [] Each one of you, we are the system. It isnt just this building, it isnt papers and reports. Its people, people listening to each other, seeing the situation, hearing what happened, and hold someone accountable based on the evidence that theyve heard.

The prosecutor further stated, in his rebuttal argument, Its time to hold Mr. Linton accountable for that day. Its time to contain the fire that had been going for a long time, and the only way to do that is through your just verdicts in this case.

Defendant complains the above arguments urged the jury to convict him for reasons not related to the crimes charged, claiming the argument hint[ed] to the jury that they should not limit their verdict to the facts and law alone. Rather, [the prosecutor] repeatedly suggested that the jury was there to help the entire Linton family and cure a bad situation that had been going on for decades.

The closing statements of counsel should relate to the law and the facts of the case as each side interprets them. (People v. Hawthorne (1992) 4 Cal.4th 43, 60.) The prosecutors statements in closing argument must be viewed in context with the remainder of summation. (People v. Medina (1995) 11 Cal.4th 694, 756.)

Taken in context with the prosecutors entire closing argument, we disagree with defendant that, in making the above-noted arguments, the prosecutor urged the jury to convict defendant for reasons not related to the crimes charged. The prosecutor made these arguments at the end of her closing remarks following a lengthy argument in which she focused on why the evidence established defendants guilt. She emphasized defendants actions on the date in question, and her remarks about accountability and the fact that the Linton family suffered years of defendants physical abuse were brief compared to the prosecutors fervent focus on why the evidence showed defendants guilt. Moreover, we do not find the error was prejudicial. The brief comments were not sufficient to undermine the outcome of the trial, in light of its context concerning the role of argument and the weight of the evidence. In addition, the court instructed the jury that it could not allow bias, sympathy, prejudice, or public opinion to influence its decision. (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 101.)

Defendant also claims the prosecutor misstated the law when she argued in rebuttal that being upset satisfied the element of sustained fear. Specifically, defendant takes issue with the following comment of the prosecutor: [Defense counsel] says, Well, you know, she wasnt scared enough. She wasnt in fear long enough. It wasnt sustained. How long should she be in fear? Now, if youre walking around the corner and someone says, Boo and you go, Oh, my God. You scared me to death, okay. The fear is over. Youre done. Thats fair enough. Thats not what happened in this case. She was still upset when she saw her mother outside. She was still upset when the police arrived. Shes still upset now when shes here in court testifying.

Defendant incorrectly argues [b]y any reasonable reading of this argument, the prosecutor was explaining why the facts supported the elements of sustained fear. Again, defendant is pointing out isolated portions of the prosecutors closing arguments and essentially repeating his insufficiency of the evidence argument. In reading the prosecutors entire closing statement, it is clear that the prosecutor specifically argued to the jury that it must find Megan was in sustained fear in order to convict defendant of criminal threats. The prosecutor pointed out that sustained fear was more than momentary, fleeting, or transitory and noted that Megan was scared of her fathers specific threat, especially in light of Megans familiarity with defendants history. The prosecutor also pointed out that Megan took the threats seriously and that she remained in fear the entire time she was in the house. Contrary to defendants assertion, the prosecutor did not argue that the basis for a finding of criminal threats was met by Megan merely being upset upon defendant threatening her life.

In addition, we do not take issue with the prosecutors use of the word upset, as defendant does. In fact, the word upset has many meanings; one reading of the definition is [t]o throw into mental disorder or discomposure. (Oxford English Dict. (2d ed. 1989) [as of August 21, 2007].) Upset can denote worry or concern, as can fear. We do not find that the prosecutor misstated the law.

Finally, defendant argues the prosecutor erred when she trivialized the standard of proof in criminal cases by inappropriately comparing the reasonable doubt standard to crossing a street. Specifically, during rebuttal argument the prosecutor stated: Beyond a reasonable doubt is often made into this big project. Its a very high standard and oh, its so impossible. . . . [] And we do talk about what is an abiding conviction. Well, a conviction, its a belief, its a feeling. Weve all had beliefs and feelings, that with which you feel the charges are true. And therefore, I have an abiding conviction beyond a reasonable doubt. Thats what that means. Its like if you â€‘‑ say youre crossing the street. You left the court and you couldnt get a parking spot. Its way too crowded this morning so you had to go park way across the street. And you go to cross the street and you look both ways, no cars are coming, it looks safe, so you proceed to cross the street. You had a belief that it was safe, you had an abiding conviction that it was safe to cross the street and you did it. [] And thats about how tough reasonable doubt it . . . . Its not some gray area, not something thats so confusing. Its really that simple. . . . Now, could a car come barreling down the road that you couldnt see? Could a dog jump out of a bush? Sure. All those things could happen. Does it make it unreasonable that you crossed the street? No. Its really that simple. [] And in this case the People would submit to you that it is safe to cross the street.

Relying on Nguyen, supra, 40 Cal.App.4th 28, defendant argues that the comments about crossing the street were made with reference to the reasonable doubt standard and had the effect of trivializing the prosecutors burden of proof. In Nguyen, the prosecutor made the following statements to the jury during summation: The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [] Its a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as youre driving. If you have reasonable doubt that youre going to get in a car accident, you dont change lanes. [] So its a standard that you apply in your life. Its a very high standard. And read that instruction, too. I wont paraphrase it because its a very difficult instruction, but its not an unattainable standard. Its the standard in every single criminal case. (Id. at p. 35.)

The Nguyen court held that the prosecutors argument was improper and strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry. (Nguyen, supra, 40 Cal.App.4th at p. 36.) The court further held, however, that the improper argument was harmless because the prosecutor directed the jury to read the reasonable doubt instruction, and the jury was correctly instructed on the standard. (Id. at pp. 36-37.) For the same reasons, the failure of defense counsel to object to the prosecutors statements did not constitute ineffective assistance of counsel. (Id. at p. 37.)

Assuming, without deciding, the prosecutor here trivialized the reasonable doubt standard, as did the prosecutor in Nguyen, Nguyen would lead us to conclude that the error here, if any, was harmless because the court properly instructed the jury, there is no indication the jury was confused about the standard, and we may presume therefore that the jury was able to understand and follow it. Moreover, the Nguyen court found that any prejudice generated by the improper argument was dispelled by the prosecutors directing the jury to read the instructions regarding reasonable doubt. (Nguyen, supra, 40 Cal.App.4th at pp. 36-37.) The same is true here. The prosecutor properly noted the reasonable doubt standard and also encouraged the jury to follow the law as given to them by the court. Defense counsel also repeatedly emphasized that the prosecutor had the burden of proof. The court properly instructed the jury about the concept of reasonable doubt. Moreover, the court reminded jurors that what the attorneys said was not evidence and that, in case of conflicts, they must follow the law as given by the court. It is presumed they followed these instructions. (People v. Hinton (2006) 37 Cal.4th 839, 871.) Under that presumption, we conclude it was not reasonably probable the jury was misled by the prosecutors statements, even if those statements were erroneous.

C. Upper Term Sentence

At sentencing, the trial court imposed the upper term of three years in prison on the principal count of making criminal threats based on the following aggravating factors: (1) that defendant was armed with and used a weapon at the time of the offense; (2) that defendant took advantage of a position of trust or confidence to commit the offense; (3) that defendant had engaged in violent conduct, which indicates a serious danger to society; and (4) that defendants prior convictions as an adult were numerous and of increasing seriousness. The court found one factor in mitigation â€‘‑ that defendants prior performance on probation was satisfactory.

Relying on Cunningham, Blakely, and Apprendi, 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 that defendant forfeited the error by not objecting at the sentencing hearing. We reject that argument. On June 20, 2005, nearly a year before defendants sentencing hearing in this case, our state Supreme Court concluded that the imposition of an upper term sentence, as provided under California law, was constitutional and does not implicate a defendants Sixth Amendment right to a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I).) At that time, the trial court was compelled to follow Black I. Therefore, it would have been futile for defense counsel to object at sentencing based on Blakely, Apprendi, or the United States Constitution. Under these circumstances, defendants Blakely challenge was not forfeited. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; People v. Turner (1990) 50 Cal.3d 668, 703-704.)

In Cunningham, the United States Supreme Court overruled Black I 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, supra, 127 S.Ct. p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] 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.)^[2] The court explained Californias determinate sentencing law violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.] (Cunningham, at p. 868.)

While this appeal was pending, the California Supreme Court decided People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 Cal. LEXIS 7604] (Black II). There, the court held that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Id. at p. 7, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black II, at pp. 10‑12.) The courts reliance here upon the factor that defendants prior convictions were numerous and increasingly serious falls squarely within such an exception. (See ibid.) It follows that the trial court did not err by imposing the upper term.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

KING

J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

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

^[2] 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.)