P. v. Sample

Filed 8/29/07 P. v. Sample 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

Defendant George Carl Sample was convicted by jury of corporal injury on a former spouse, with personal infliction of great bodily injury (count one); assault with a deadly weapon (count two); possession of a firearm by a convicted felon (count three); and battery upon a cohabitant (count five). The trial court found that he violated his probation on an earlier conviction for spousal abuse. Defendant was sentenced to an aggregate term of 11 years, eight months in state prison, including the upper term on count one and consecutive terms on count three and on the prior conviction.

On appeal, defendant raised a variety of contentions, including his claim that imposition of the upper term and consecutive terms violated the Sixth Amendment of the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) and Blakely v. Washington (2004) 542 U.S. ___ [159 L.Ed.2d 403] (hereafter Blakely).

We rejected defendants contentions in an opinion, filed on September 13, 2004, that was certified for partial publication on the question whether the upper term and consecutive sentences were imposed contrary to requirements of the Sixth Amendment.

Defendants petition for review was granted by the California Supreme Court (review granted December 1, 2004, S128561), which later dismissed review (review dismissed September 7, 2005, S128561 [Cal. Rules of Court, former rule 29.3(b)]) after it decided People v. Black (2005) 35 Cal.4th 1238 (vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36]).

The United States Supreme Court granted defendants petition for certiorari, vacated our decision, and remanded the cause to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d. 856] (hereafter Cunningham). (Sample v. California, 05-8031, cert. granted February 20, 2007, and cause remanded.)

On March 13, 2007, this court recalled the remittitur issued in this matter, vacated the decision, reappointed counsel to represent defendant, and directed the parties to file supplemental briefing addressing Cunningham issues only . . . . They have done so.

Once again, we reject defendants contentions and affirm the judgment, but direct the trial court to correct clerical mistakes in the abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The charges against defendant

Count one, committed on September 17, 2001, alleged infliction of corporal injury upon defendants former spouse, Tamara Sample, resulting in a traumatic condition and with personal infliction of great bodily injury under circumstances involving domestic violence. (Pen. Code, 273.5, subd. (a), 12022.7, subd. (e); further section references are to the Penal Code unless otherwise specified.) As to this count, it was further alleged that defendant was convicted of spousal abuse in June 2000. ( 273.5, subd. (e)(2).)

Count two, committed on September 17, 2001, alleged assault with a deadly weapon (a noose) upon Tamara Sample by means of force likely to produce great bodily injury. ( 245, subd. (a)(1).)

Count three, committed on August 22, 2001, alleged possession of a firearm by a convicted felon. ( 12021, subd. (a)(1).)

Count four, committed on August 22, 2001, alleged resisting officers in the performance of their duties. ( 69.)

Count five, committed on August 22, 2001, alleged battery on a cohabitant, Tammice Woods, a misdemeanor. ( 243, subd. (e)(1).)

The convictions

In January 2003, a jury found defendant guilty of counts three and five, but could not reach verdicts on the other counts, as to which a mistrial was declared. In May 2003, defendant was sentenced on counts three and five, and on the prior spousal abuse conviction for which probation was revoked. Thereafter, counts one and two were retried, and a second jury found him guilty of both crimes. Count four was severed and is not at issue here. On June 25, 2003, defendant was sentenced on counts one and two, and on the enhancement to count one, and was resentenced on counts three and five, and on the prior felony conviction. Defendant filed a notice of appeal the next day.

The prosecutions evidence

1. The crimes on August 22, 2001 (counts three and five)

The sheriffs department received a 9-1-1 call reporting that a man was assaulting a woman and pointing a gun at her in an apartment complex.^[1] Deputies went to an apartment there and found Tammice Woods upset and crying. Defendant was in the bathroom. After deputies subdued him, they found a loaded gun in a hole in the box spring of the bed in the master bedroom. Defendants identification and ammunition (of a caliber suitable for the gun) were found in a duffel bag in a hall closet.

Woods testified defendant sort of lived with her, but also was still staying with his wife. Defendant did not live with Woods full-time; he was just in and out. He had his own key to the apartment, kept personal belongings there, and sometimes spent the night. Before Woods moved to the apartment, she and defendant lived together [k]ind of off and on in 2001.

According to Woods, defendant called on August 22, 2001, and wanted her to pick him up at work so he could leave work early. When she arrived there, he was angry because she was late and she brought a friend whom he disliked. Defendant grabbed Woods by the arm and slapped her. After driving home in silence, defendant and Woods went to the community laundry room so they could argue without her friend hearing. Defendant grabbed Woods by the hair, swung her to the ground, and kicked her in the back. Woods testified that defendant did not threaten her with a gun; rather, he pointed his cell phone at her. Shortly after defendant and Woods went back inside the apartment, law enforcement officers arrived.

Woods further testified that, one week earlier, she allowed defendants brother, Kelcey Sample, who was visiting from Indiana, to keep his gun at her apartment.^[2] Kelcey told Woods to store the gun for him. She put it in its case and placed it on the floor under her bed. Although she told Kelcey where she put the gun, she did not tell defendant about it. She denied putting the gun in the box spring, explaining she did not even know about the hole in it. Woods, defendant, and Kelcey all had things stored in the hall closet. Defendant customarily kept his wallet on the kitchen counter or on the bedroom dresser if he did not have it on his person.

2. The crimes on September 17, 2001 (counts one and two)

Tamara Sample and defendant were married in 1996. They separated and reconciled numerous times. In August 2001, Tamara decided to break all ties.

Tamara testified that when she left her mothers apartment and went to her car on the morning of September 17, 2001, defendant was hiding in the backseat. He grabbed Tamara by her hair, pulled her into the car, and asked her to come with him. They struggled, and defendant punched her all over her body. She escaped the car, but defendant caught up with her, slammed her against a fence, and pushed her into nearby cars. At one point while Tamara was on the ground, defendant sat on top of her and tried two or three times to put a zip tie around her neck. He got the zip-tie noose down to her chin before she managed to pull it off. He also hit her in the face with a closed fist, causing a cut under her eye that required stitches to close. The beating stopped when a woman approached and asked if Tamara was alright.

3. Uncharged conduct

Evidence of prior uncharged conduct was introduced pursuant to Evidence Code section 1109, as follows:

In September 1996, Tamara was pregnant and had left defendant because he was having an affair with another woman. Defendant came to the home of Tamaras relatives, banged on the door trying to get in, and threatened to kill Tamara and her family. Tamara told police that on the same day, defendant grabbed her by the wrists and kicked her in the head.

In February 2000, Woods left a male friends house and found defendant sitting in his car, angry. Defendant grabbed her arm, hit her, and pulled out a gun. They drove to Woodss residence, and while still in the car, defendant hit her several times and told her to remove her pants, which she did out of fear. After they went inside the house, defendant hit Woods with a belt, punched her with a closed fist, and kicked her. He let her go when she said she had to pick up her children at her mothers house. While at her mothers house, Woods saw defendant and his wife, Tamara. Defendant got into the car that he had purchased for Woods and shot a gun into the air. Photographs of her bruises from this incident were shown to the jury.

In August 2001, Tamara and defendant split up. He took her car and said he would not bring it back. After Tamara called the police, defendant returned the car and rammed it into the garage. He went into the house, struggled with Tamara, who was trying to open the door for police, busted her lip, and caused her to suffer a knot on her head.

Defense

1. The events on August 22, 2001

Defendants brother, Kelcey, testified that about two weeks before defendants arrest in August 2001, Kelcey came to Sacramento, planning to relocate from Indiana. He left most of his belongings at Woodss apartment, where he sometimes slept. He asked Woods to store his gun, and she put it under the bed. Feeling it was not safe there, Kelcey put the gun inside a hole in the mattress while he was alone in the apartment. Kelcey had ammunition in his duffel bag, which was in Woodss living room closet. Although the gun was loaded when the officers found it, Kelcey testified that he did not load it and that he believed it was not loaded when he moved it.

Defendant testified he was aware of the gun and saw it on the bed, but he did not know where it was stored. Defendant knew he was not supposed to possess a firearm, but he was not concerned about it since he did not live at Woodss apartment. However, he acknowledged he had been involved with Woods for a number of years, he had a child with her, and he stayed at her apartment probably at least twice a week. Although he was not sure where his wallet was at the time the officers entered the apartment, defendant claimed he never ever kept it in a duffel bag in the closet. He assumed it was on the bedroom dresser because that was where he took off his clothes preparing for a shower before the officers arrived.

Regarding the alleged battery, defendant admitted he was mad at Woods and smacked her when she arrived late to pick him up at work. He also admitted he grabbed her hair and pulled her towards him in the laundry room. According to defendant, she fell and he accidentally kicked her or stepped on her.

2. The events on September 17, 2001

Defendant considered himself divorced from Tamara in August 2001, but he did not know if it was official. As of September 2001, she was seeing other men, and he had been seeing other women for years.

Defendant denied going to the residence where Tamara was staying on September 17, 2001, and denied attacking her. Although he acknowledged that he uses zip ties in his construction job, defendant denied ever trying to place one around Tamaras neck.

3. Uncharged conduct

Defendant admitted that he had physically abused Tamara in the past, and admitted having a prior felony conviction for domestic violence against Woods, for which he was on probation.

Although defendant admitted he had grabbed Tamaras arm during the incident in September 1996, because he wanted to talk with her, he denied threatening Tamaras family, firing a gun, or kicking Tamara.

As to the incident in February 2000, defendant testified he arrived for a barbecue, saw Woods talking to a man, and got angry. He admitted he hit her and later fired gunshots into the air, which he claimed were to fend off Woodss brothers who were gang members. Defendant admitted pleading guilty to felony domestic violence based upon this incident.

Regarding the August 2001 incident, defendant testified he and Tamara had a fight, and she told him to leave. He loaded some of his belongings in her car, which was bigger than his car, and drove away. Several minutes later, a law enforcement officer called him on his cell phone and said Tamara reported the car stolen. Defendant returned, hit the garage door opener, but pulled in too fast and accidentally ran the car into the garage door.

The judgment

Defendant was sentenced to an aggregate term of 11 years, eight months in prison: The upper term of five years on count one (corporal injury on a former spouse); a consecutive term of five years for the great bodily injury/domestic violence enhancement; four years on count two (assault with a deadly weapon), which was stayed pursuant to section 654; a consecutive term of eight months (one-third the middle term) on count three (possession of a firearm by a convicted felon); a consecutive term of one year (one-third the middle term) on the prior felony conviction of spousal abuse for which probation was revoked; and a concurrent term of one year on count five (battery).^[3]

DISCUSSION

I

Defendant contends the evidence was insufficient to support the jurys finding that he was guilty of being a convicted felon in possession of a firearm. We disagree.

In considering a claim of insufficiency of the evidence, we must determine only whether, on the record as a whole, any rational trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We view the evidence in the light most favorable to the judgment, and presume in support thereof the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. . . . (Ibid.)

Section 12021, subdivision (a)(1) provides: Any person who has been convicted of a felony under the laws of the United States, [or] the State of California, . . . who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

The jury was told the element of a prior felony conviction had been established by stipulation, and was further instructed as follows:

There are two kinds of possession: actual possession and constructive possession. [] Actual possession requires that a person exercise direct physical control over a thing. [] Constructive possession does not require actual possession, but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [] One person may have possession alone, or two or more persons together may share actual or constructive possession. [] In order to prove this crime, each of the following elements must be proved: [] 1. The defendant had in his possession or had under his control a firearm; and [] 2. The defendant had knowledge of the presence of the firearm. In addition, the jury was instructed on general criminal intent.

The trial court gave a limiting instruction preventing the jury from considering as evidence of defendants guilt the 9-1-1 call (reporting a man holding a gun). Consequently, we disregard defendants argument that the call reported a silver gun, whereas the gun found in the bed was dark blue. And we disregard the Peoples reference to the 9-1-1 call as evidence supporting the conviction.

Defendant acknowledges that possession of an item may be imputed when the item is found in a location immediately accessible to the defendant and subject to his dominion and control. (People v. Francis (1969) 71 Cal.2d 66, 71.) Here, the gun was found in an apartment to which defendant had a key and in a bed in which he slept at least two nights a week. Consequently, this case is distinguishable from People v. Glass (1975) 44 Cal.App.3d 772, cited by defendant, which held the most that could be inferred from evidence of appellant being discovered half-clad in bed at 11:30 a.m. is that he was a visitor at the residence on the morning police found drugs beneath the living room couch. (Id. at p. 776.)

Moreover, defendant admitted he knew the gun was being kept in the apartment and he had seen it on the bed. He claims his mere presence near the gun, without more, is insufficient to support a finding of possession. (People v. Rodriguez (1980) 111 Cal.App.3d 161, 166-167.) But there was more than mere presence. Defendant knew the gun was being kept in the apartment; the gun was found loaded, whereas Kelcey (who freely admitted bringing the gun and ammunition into the apartment) said he did not load it and believed it was not loaded when he moved it; and defendants identification, together with ammunition for the gun, was found in a duffel bag.

Defendant argues the evidence linking his identification to the ammunition was insubstantial because [n]one of the officers . . . actually saw the identification retrieved nor could they recall who claimed to have located it. However, Deputy Sheriff Christopher Berg testified that, although he could not remember which officer pulled the duffel bag out of the closet and opened it, Berg personally observed the officer remove from the bag defendants identification and a partial box of nine millimeter ammunition, which was the same caliber as the gun found in the box spring. Likewise, Deputy Sheriff Steve Fisher testified he was present when defendants identification was removed from the duffel bag.^[4]

Evidence that (1) defendants identification was in the duffel bag along with ammunition for the gun, (2) defendant admitted he knew the gun was in the apartment, and (3) the gun was found in the bed where defendant slept at least two nights a week, supports the finding that defendant had possession of the firearm within the meaning of section 12021.

Defendant argues there was insufficient evidence that he had any intent to possess a gun. He acknowledges no specific intent is required for section 12021. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922 (hereafter Jeffers).) But he quotes from Jeffers that [w]rongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm. (Ibid.) However, the point made by Jeffers was that a convicted felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent. (Ibid.) Jeffers asserted he did not know there was a gun in a package he delivered to a gun shop until he arrived there and the shopkeeper opened the package. (Id. at p. 921.) His conviction was reversed because the trial court failed to instruct on general intent and refused his pinpoint instruction relating to his defense. (Id. at p. 924.) Jeffers concluded the jury may have believed the only issue to be decided was whether the defendant had knowledge a gun was in the package, even if that knowledge was not acquired until after he arrived at the gun shop and even if possession was not intentional. (Id. at p. 924.)

No such problem presents itself in this case. Unlike the accused in Jeffers, defendant admitted he knew the gun was being kept in the apartment. [K]nowledge plus physical possession may ordinarily demonstrate an intent to exercise dominion and control (though knowledge does not conclusively demonstrate such intent as a matter of law). (Jeffers, supra, 41 Cal.App.4th at p. 922.)

Substantial evidence supports the jurys finding that defendant was guilty of being a convicted felon in possession of a firearm.

II

Defendant contends the trial court erred in failing to instruct sua sponte that mere access to a firearm was insufficient to find him guilty of being a convicted felon in possession of a firearm. We disagree.

[E]ven in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jurys understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047 (hereafter Montoya).)

Here, the jurors were instructed that in order to convict defendant, they must find that he had the gun in his possession (knowingly exercising control over it or the right to control it) and had knowledge of the guns presence. Under these instructions, the jury could not convict him based upon a mere finding of access or proximity to the gun. Thus, there is no merit to defendants contention that the jury may have concluded that his proximity to the gun was sufficient to establish possession.

Defendant claims that Montoya imposes a duty to instruct sua sponte that mere proximity to a firearm is not enough. However, Montoya dealt with an instruction on aiding and abetting, not possession of a firearm. Moreover, Montoya found no duty to give sua sponte the instruction urged by the appellant in that case. (Montoya, supra, 7 Cal.4th at pp. 1047-1050.)

Defendant cites People v. Mardian (1975) 47 Cal.App.3d 16 (hereafter Mardian) (disapproved on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1123, fn. 1). Mardian found no reversible error in the trial courts denial of multiple jury instructions proposed by the appellant, including an instruction that more than mere access or proximity must be shown for the crime of possession of a controlled substance. (Id. at pp. 45-47.) Mardian held the trial court adequately instructed the jury on the question of whether defendant had actual possession of the contraband (e.g., dominion). The court stated that neither mere proximity to the drug, nor association with those in possession, was sufficient to establish possession under the law. (The three instructions requested by defendant stated that dominion could not be shown by mere access or proximity to the contraband, and were effectively covered by the foregoing instruction.) (Id. at p. 47.) Thus, Mardian merely stands for the proposition that a trial court does not err in refusing proposed instructions which duplicate other instructions.

Defendant notes that with respect to the jury instruction on constructive possession of contraband, FORECITE recommends adding the words access to the thing, without more, is insufficient to support a finding of possession. (1 FORECITE (3d ed. 2002) Constructive Possession, F 1.24b, p. 147.) But FORECITE merely recommends the addition should be given upon request. (Ibid.) Here, defendant made no such request.

In sum, the trial court had no duty to instruct sua sponte that mere access, without more, was insufficient to support a finding that defendant possessed the gun.

We also reject defendants claim that his trial counsels failure to request the instruction constituted ineffective assistance of counsel.

To establish ineffective assistance, defendant bears the burden of showing (1) counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsels error, it is reasonably probable that the verdict would have been more favorable to the defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

We need not address the first prong because defendant fails to show a reasonable probability of a more favorable verdict. He merely asserts [a]s discussed in the previous two arguments, the evidence of proof of possession was not particularly substantial. Had the jury been properly instructed and weighed each of the critical facts in the light of that instruction, it is indeed reasonably probable that a more favorable outcome would have transpired.

This argument is deficient and is predicated in part on defendants misstatement that no witness saw defendants identification retrieved from the duffel bag containing the ammunition. And it ignores that trial counsel argued to the jury that defendants mere knowledge that the weapon was present in the house would not suffice for conviction.

Since defendants identification was found in the bag along with ammunition fitting the gun, it is not reasonably probable that he would have obtained a more favorable verdict had the instruction been given.

III

Next, defendant claims the trial court erred in failing to instruct sua sponte that the jurors must agree unanimously on which act or acts formed the basis for the charge of battery of a cohabitant. ( 243, subd. (e).)

If one criminal act is charged, but the evidence tends to show the commission of more than one such act, then either the prosecutor must elect the specific act relied upon to prove the charge, or the trial court has to instruct the jury that, to convict, it must unanimously agree the defendant committed the same specific criminal act. (People v. Napoles (2002) 104 Cal.App.4th 108, 114.)

Section 243, subdivision (e)(1) states: When a battery is committed against a spouse, a person with whom the defendant is cohabiting, . . . or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. . . .

Section 242 defines battery as any willful and unlawful use of force or violence upon the person of another.

Defendant contends there were two sets of facts which might support the charge (1) his smacking Woods when she picked him up at work, and (2) his pulling her hair and kicking her at the laundry room; thus, a unanimity instruction was required.

Acknowledging that he was angry because Woods arrived late to pick him up at work on August 22, 2001, defendant testified as follows:

Q And did you hit her or anything because of your being angry with her?

A Yes, I did.

Q And so what did you do to her?

A When, um, we was [sic] in the parking lot outside the stores I was yelling at her. . . . And she just got mad and said you just take your car. You know, and she was like you take your car. She opened up the car door. It hit my knee so I pushed the car door, and at the same time I just -- I just like smacked her once. I didnt hit her with the fist or nothing. I just smacked her.

Q Okay. So she had opened the car door and hit your knee, then you smacked her?

A I pushed the car door back and at the same time, same hand, one hand smacked her.

Defendant further stated: When she . . . opened the door and hit me, hit me in the knee with it, I closed the door, and I dont know. I guess it was both, my closing the door, my hand came across, and I wanted to smack her, too, I guess.

When asked if he hit her intentionally, he said Yes, I hit her; yes. He said he hit her across the forehead.

Defendant testified they drove to his job site, where he dropped off his work truck. They then went to the apartment. He wanted to yell at her, but not in front of the children, so they went to the laundry room:

A We were arguing. Um, more, you know, um, her being late. Im gonna lose my job. You goofing off with [friends]. And, you know, dont want nothing else. Said she didnt want to leave [sic], she didnt want to hear it. I kept grabbing on her arm trying to make her stay and listen. She kept pulling away. [] I did, I grabbed her hair. One of the times I reached to grab her I grabbed her hair and I pulled her back towards me.

Defendant said he was moving forward, she fell, and people say I stomped on her, stepped on her or tripped over her. But I did kick her, step on her, whatever.

Q And then after were you on the ground then --

A She was. And I stumbled over. So if shes laying down, I pulled her back. Shes pulling forward, she fell and Im going forward. And I stepped -- stepped, stumbled over her. I didnt fall, she did.

The prosecutor argued to the jury: This one is basically easy because, basically, [defendant] basically admitted that he did this. He told you, Yeah, I smacked her, smacked her when she was late picking me up, and when we got home, yes, I pulled her arm. He didnt say kick her. It was more like a trip over her, but [Woods] told you he kicked her, and she was on the ground, and he kicked her. Each [sic] without [Woods] telling you what happened, the defendant admitted to this crime in court. All these elements: Defendant used force, yes. He smacked her in the head, yes. It was willful. He pulled her hair. He kicked her when she was on the ground because he had more to say, and yes, she was the mother of his child. He admitted this.

In closing, defense counsel argued: I agree . . . on one thing, and that was on the . . . misdemeanor battery on Tammice Woods. Uh, I agree that [defendant], uh, committed that. He did that . . . . Thats unwanted touching. It doesnt have to hurt anybody. It doesnt have to cause pain, doesnt have to be done violently, doesnt have to be done in anger. If its just kind of an unwanted touching, then it constitutes that crime. [] And [defendant] told you that, when he was, uh, uh, closing the door, that he did kind of smack Tammice Woods and that he did grab her hair and pull her back toward him when he wanted her to talk to him. She fell down, and then he kind of stumbled over her and his foot hit her. All those things constitute that crime, right, so that ones a no-brainer. You can go back there and find him guilty of that.

Thus, despite his appellate contention that he did not admit the element of willfulness, defendant admitted he intentionally smacked her when Woods picked him up at work. He also admitted he grabbed her hair and pulled her towards him in the laundry room, with the intent to make her stay. Both acts constitute battery. Contrary to his view, it does not matter if he hit her because he got hit with the car door. He does not demonstrate that being hit with the car door afforded him any legal defense to his smacking Woods. As to the laundry room, defendant focuses on his view that he did not kick her but stumbled over her accidentally. However, the battery was already complete when he pulled her towards him by her hair.

The prosecutor used not only the hair pulling and the smack, but also the kick, which defendant claims was accidental. However, it is inconceivable that any juror believed defendant intentionally kicked her but disbelieved his admission that he smacked her and pulled her hair. It also is inconceivable that any juror believed defendants admission that he pulled her hair but disbelieved his admission that he smacked her (or vice versa).

Under the circumstances of this case, the failure to give a unanimity instruction was harmless beyond a reasonable doubt. (People v. Wolfe (2003) 114 Cal.App.4th 177, 186; People v. Deletto (1983) 147 Cal.App.3d 458, 472.)

IV

Defendant contends Evidence Code section 1109, which allows introduction of prior act evidence in domestic violence cases, is unconstitutional on its face and as applied to this case.^[5]

Defendant acknowledges his facial challenge to the statute has been rejected by this court in People v. Johnson (2000) 77 Cal.App.4th 410, at pages 412-420 (hereafter Johnson), and by other courts. However, he argues that Johnson was wrongly decided. It was not.

Defendant also argues that admission of prior acts evidence pursuant to Evidence Code section 1109 offended his right under the Fifth and Fourteenth Amendments to a fair trial. Specifically, he contends that evidence of the February 2000 incident (defendant saw Woods with another man, hit her in the car, ordered her to remove her pants, beat her when they got home, and later fired a gun into the air at her mothers home) should have been excluded under Evidence Code section 352.

It is apparent that defendants contention relates only to the first trial because his counsel says: While it may fairly be argued that the court acted within its discretion in admitting past conduct pursuant to Evidence Code section 1109 in regard to the assault upon Ms. Sample, the same may not be said in regard to the lesser charge involving Ms. Woods. The battery charge involving Woods was at issue only in the first trial.

We need not address the merits (or whether defendant preserved the issue by requesting a limiting instruction in the trial court), because even assuming for the sake of argument that the evidence was wrongly admitted, defendant fails to show the manifest miscarriage of justice required for a reversal. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Since defendant admitted the acts constituting the battery of Woods, he cannot attribute his conviction to the prior acts evidence. Moreover, it is obvious that the admission of the prior acts evidence in the first trial did not inflame the jurors against defendant because they did not convict him on the felony counts of domestic violence against his former wife, and instead were unable to reach a verdict.

In sum, defendant fails to show grounds for reversal with respect to admission of evidence under Evidence Code section 1109.

V

According to defendant, the trial court erred by applying section 2933.1 to limit his presentence custody credits. Not so.

Section 2933.1 states in part: (a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 [enhancement of punishment for prior prison terms involving violent felonies] shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. [] . . . [] (c) Notwithstanding Section 4019 [time credit for work and good behavior] or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a). . . .

Defendant brought himself within the purview of section 2933.1 by his conviction for corporal punishment on his former spouse, Tamara Sample, with personal infliction of great bodily injury. ( 667.5, subd. (c)(8) [violent felony includes felony in which defendant inflicts great bodily injury as provided in 12022.7].) He acknowledges the trial court properly applied section 2933.1 to limit his presentence custody credits on this conviction.

His claim is that section 2933.1 should not be applied to limit presentence custody credits as to his conviction for the nonviolent felony of possessing a firearm as a convicted felon.

Defendant says he preserved the issue for appeal by raising it in the trial court. But his citation to the record merely shows that defense counsel said there may be some question about the accuracy of the calculation of jail credits; that the court told him to go over the calculation with the court clerk; and that if the calculation was incorrect, it could be corrected by minute order.

In any event, he fails to show error. As he acknowledges, a similar argument was rejected in People v. Ramos (1996) 50 Cal.App.4th 810 (hereafter Ramos), where an appellant convicted of eight counts of robbery at gunpoint (triggering section 2933.1), and one count of possession of a controlled substance, argued that section 2933.1 should not be applied to limit credits with respect to the nonviolent felony. (Id. at p. 817.) Ramos rejected the argument, stating the language of section 2933.1 does not support [appellants] position. The statute applies notwithstanding Section 4019 or any other provision of the law and limits to 15 percent the maximum number of conduct credits available to any person who is convicted of a felony offense listed in Section 667.5. That is, by its terms, section 2933.1 applies to the offender not to the offense and so limits a violent felons conduct credits irrespective of whether or not all his or her offenses come within section 667.5. The Legislature could have confined the 15 percent rule to the defendants violent felonies if that had been its intention. (Cf. 2900.5, subd. (b), limiting presentence credits to the custody attributable to proceedings related to the same conduct for which the defendant has been convicted.) (Ramos, supra, 50 Cal.App.4th at p. 817.)

Defendant argues Ramos was wrongly decided because it implicitly found that section 2933.1 is ambiguous, yet it failed to apply the rule construing ambiguous statutes in favor of criminal defendants. However, while Ramos reiterated rules of statutory construction in addressing a different contention, it found no ambiguity in section 2933.1 on this issue. (Ramos, supra, 50 Cal.App.4th at pp. 816, 817.)

We agree with Ramos and the other courts that have agreed with Ramos. (People v. Duran (1998) 67 Cal.App.4th 267; People v. Palacios (1997) 56 Cal.App.4th 252.)

Defendant claims that in applying section 2933.1, the court in People v. Thomas (1999) 21 Cal.4th 1122 (hereafter Thomas) narrowly interpreted section 2933.1 and focused on the offense rather than the offender (in contrast to the focus of Ramos on the offender rather than the offense). Thomas construed the provision of section 667.5, subdivision (c)(7), which characterizes as a violent felony [a]ny felony punishable by death or imprisonment in the state prison for life. (Id. at p. 1127.) The felonies at issue were not in themselves punishable by death or life imprisonment, but became so by application of the three strikes law ( 1170.12). Thomas held sections 2933.1 and 667.5(c)(7) limit a defendants presentence conduct credit to a maximum of 15 percent only when the defendants current conviction is itself punishable by life imprisonment, not when it is so punishable solely due to his status as a recidivist. (Id. at p. 1130.)

Thomas has no bearing on the case before us. There is no dispute that defendants section 273.5 conviction with infliction of great bodily injury was, in itself, a violent felony triggering section 2933.1. Thomas does nothing to undermine Ramos.

The trial court in this case properly applied section 2933.1.

VI

Relying on Blakely, supra, 542 U.S. ___ [159 L.Ed.2d 403], Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], and Cunningham, supra, 549 U.S. __ [166 L.Ed.2d. 856], defendant claims the trial court erred in imposing the upper term on count one and consecutive terms on count three and on his prior felony conviction enhancement.

Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].) In Cunningham,the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d. at p. 864], overruling People v. Black, supra, 35 Cal.4th 1238 (hereafter Black I) on this point.)

Defendant was sentenced in 2003, after Apprendi but before Blakely. He concedes that he did not object in the trial court to imposition of the upper term and consecutive sentences. Thus, the People argue defendant forfeited his right to raise the issue on appeal. But Californias Supreme Court recently noted that, prior to Blakely, it was widely assumed that for the purposes of the rule established in Apprendi, the maximum term authorized by the jurys verdict was the upper term, and that [w]ith its clarification of a defendants Sixth Amendment rights, the Blakely court worked a sea change in the body of sentencing law. [Citation.] (People v. Black (July 19, 2007, S126182) __ Cal.4th __, __ [at pp. 10-11] (hereafter Black II).) Because it cannot be said that competent trial counsel should have anticipated this sea change in the law, Black II held that with respect to sentencing proceedings similar to the one here at issue, preceding the Blakely decision, a claim of sentencing error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsels failure to object at trial. (Black II, supra, __ Cal.4th at pp. __ [at pp. 9, 11].)

Nevertheless, defendants claim of error fails for reasons that follow:

A

The probation report identified various circumstances in aggravation pursuant to California Rules of Court, rule 4.421, and no circumstances in mitigation other than defendants youth at 25 years of age. (Further rule references are to the California Rules of Court.)

The report reflects that defendant had two prior convictions involving violence. In 1995, he was convicted in the State of Indiana for criminal recklessness, based upon an incident in which he pulled out a gun, threatened to kill the victim, and then fired at the victim, wounding him in the head, as the victim tried to drive away. In 2000, he was convicted of felony spousal abuse based upon an incident in which he forced the mother of his children into a car at gunpoint, hit, kicked, and strangled her, and then fired two shots into the air. The report further showed that defendant was on probation for the 2000 conviction when he committed the crimes for which he was convicted in this case, and that his performance on probation had been unsatisfactory because, among other things, he had failed to complete a batterers treatment program, had violated a restraining order, had stolen his former wifes car keys, had lied to probation staff, and had been involved in an altercation at the Changing Courses program.

Defendant did not exercise his right to submit a statement in aggravation or mitigation to dispute facts in the record or the probation officers report, or to present additional facts. . . . ( 1170, subd. (b).)

The trial court explained its sentencing choices in pertinent part as follows:

The court has considered the following circumstances in aggravation:

Pursuant to Rule of Court 4.421(a)(1), (a)(8), (b)(1), (b)(2), (b)(4) and (b)(5), the court finds that the crime [in count one, corporal injury on former spouse, Tamara Sample] involved great violence and great bodily injury, disclosing a high degree of cruelty, viciousness or callousness;

The court finds the manner in which the crime was carried out indicated planning and sophistication;

The court finds the defendant has engaged in violent conduct, which indicates a serious danger to society;

The court finds the defendants prior convictions as an adult are numerous and of increasing seriousness;

The court finds the defendant was on a grant of formal probation when the crime was committed;

And the court further finds the defendants prior performance on probation was unsatisfactory.

The one circumstance in mitigation under Rule 4.408 is that the defendant was youthful at the time he committed the offense.

Regarding sentencing, the court has considered the applicability of Penal Code Section 654 and Rule of Court 4.424[], that is, the court finds the commission of the crime in Count Two [assault with deadly weapon] occurred during a continuous course of criminal conduct where the defendant harbored a single criminal objective, and, therefore, sentencing as to that count will be stayed pursuant to Penal Code Section 654.

The court has considered Rule of Court 4.425 and the criteria affecting consecutive or concurrent sentences under subsection (a)(2) and (a)(3). The court finds that the crimes in Docket 01F07726 involve separate acts of violence or threats of violence.

The court further finds the crimes in Counts One and Three of Dockets 01F07726 and 00F01775 [a section 273.5 conviction for corporal injury on spouse in 2000, and the August 2001 firearm possession] were committed at different times or separate places rather than being committed so close in time and place as to indicate a single period of aberrant behavior. Therefore, the court finds that consecutive sentencing is appropriate.

Accordingly, as to Count One, a violation of Penal Code Section 273.5, the court will designate this count as the principal term. As to this count, it is ordered the defendant be committed to state prison for the high term of five years.

The high term is ordered given the planning and sophistication involved, within the meaning of Rule of Court 4.421(a)(8).

And the court further finds that the crime and -- the fact the defendant was on probation when the crime was committed under Rule 4.421(b)(4).

As to the enhancement pursuant to Penal Code Section 12022.7[, subdivision] ([e]), it is ordered the defendant be sentenced to the high term of five years state prison. This is ordered to run consecutive[ly].

The high term is ordered given the violence and the degree of cruelty, viciousness and callousness, within the meaning of Rule of Court 4.421(a)(1).

The court finds as to both that count and the enhancement that the aggravating factors substantially outweigh any mitigating factors.

As to Count Two, it is ordered the defendant be sentenced to four years state prison. Sentencing on this count is stayed pursuant to Penal Code Section 654.

As to Count Three, for which the defendant was previously sentenced to eight months state prison, it is now ordered that that be set as one-third of the midterm of two years, or eight months, in state prison. It is ordered to be served consecutively.

In regard to Docket Number 00F01775, of which the defendant was previously sentenced to four years state prison, it is now ordered that this offense become a subordinate term and the defendant be ordered to serve one-third the midterm of three years, or one year, to be served consecutively. Consecutive sentencing is ordered pursuant to Rule of Court 4.425(a)(2) and (a)(3) [crimes involving separate acts of violence, and crimes committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior].

B

As noted above, with respect to defendants corporal punishment on his former spouse (count one), the trial court found five factors in aggravation: the crime involved a high degree of cruelty, viciousness, or callousness; it was carried out in a manner that indicated planning and sophistication; defendant had engaged in violent conduct, which indicated a serious danger to society; defendants prior convictions as an adult were numerous and of increasing seriousness; he was on a grant of formal probation when the crime was committed; and his prior performance on probation was unsatisfactory. However, in imposing the upper term, the court relied on only two of them: the crime involved planning and sophistication; and defendant was on probation when he committed the crime.

The prior conviction exception to the Sixth Amendment right to a jury trial on a fact used to impose an enhanced sentence applies to the fact that defendant was on probation when he committed the crime alleged in count one. (People v. Thomas (2001) 91 Cal.App.4th 212, 223; see U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the rule does not apply to subsidiary findings that are related to a prior conviction, such as the defendants status on probation]; see also Black II, supra, __ Cal.4th at p. __ [at pp. 21-22]; see also People v. Yim (2007) 152 Cal.App.4th 366, 371.) In other words, the fact that defendant was on probation when he committed the new crime could be used by the trial court to impose the upper term even though that fact had not been submitted to, and found true by, a jury.

The question, then, is whether the trial court erred in also relying upon additional aggravating facts that do not fall within the prior conviction exception to the Apprendi/Blakely/Cunningham rule as other reasons to impose the upper term. No says Californias Supreme Court. (Black II, supra, __ Cal.4th at pp. __ [at pp. 2, 11, 12, 16-17].) Because defendants status on probation when he committed the crime made him eligible for the upper term, the Sixth Amendment permit[ted] 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. (Id. at p. __ [at p. 12]; orig. italics.)

This is so because the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is legally essential to the punishment (Blakely, supra, 542 U.S. at p. 313), that is, to any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 863]). (Black II, supra, ___ Cal.4th at p. __ [at p. 11].) Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, 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. (Black II, supra, ___ Cal.4th at p. __ [at p. 13].)

Consequently, says Californias Supreme Court, [t]he issue to be determined in each case is whether the trial courts fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed. (Black II, supra, __ Cal.4th at p. __ [at p. 16]; orig. italics.) As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional. (Id. at pp. __ [at pp. 16-17].)

In any event, as a factor in aggravation, the trial court found that defendants prior convictions as an adult were numerous. The Supreme Court stated in Apprendi and reiterated in Blakely and Cunningham, the Sixth Amendment of the United States Constitution permits the fact of prior convictions to be used to increase a defendants sentence without that fact having been tried to a jury and proved beyond a reasonable doubt. (See Blakely, supra, 542 U.S. at p. ___ [159 L.Ed.2d at p. 412]; Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].]) Beyond a reasonable doubt, we conclude that if the trial court had anticipated the holding in Blakely, it would have cited defendants prior convictions as a basis for the upper term. Hence, its reliance on other factors was harmless. (See Washington v. Recuenco (2006) 548 U.S. __, __ [165 L.Ed.2d 466, 474-477]; People v. Sandoval (July 19, 2007, S148917) __ Cal.4th __, __ [at pp. 10-11] (hereafter Sandoval).)

C

In imposing the upper term on the enhancement for defendants personal infliction of great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)), the court cited only one factor in aggravation, i.e., the violence and the degree of cruelty, viciousness, and callousness of the act.

That this factor was not submitted to the jury does not mean the upper term must be reversed. Rather, we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term. (Sandoval, supra, __ Cal.4th at p. __ [at p. 11].) [