P. v. Codinha

Filed 9/18/07 P. v. Codinha CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Joseph Codinha, Jr., appeals from a judgment convicting him of indecent exposure with a prior conviction for lewd act on a child. (Pen. Code,^[1] 314, 288, subd. (a).) He contends the trial court (1) erred in admitting uncharged sexual offense evidence, and (2) violated his jury trial rights under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) by imposing an upper term sentence. We reject his arguments and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of January 29, 2005, David Dorfman was at a parking lot adjacent to his downtown apartment. Dorfman saw Codinha standing in a clearly visible area of the parking lot masturbating his exposed penis. As Dorfman walked through the parking lot, Codinha took a couple of steps towards Dorfman until he was about 30 feet away from him. Dorfman went to his car to retrieve a flashlight, and then went and placed money in the lot's pay box. As he walked back through the lot to go to his home, he again saw Codinha. Codinha was standing in a different area of the lot, and was still masturbating with his penis exposed. Codinha was about 15 to 20 feet from Dorfman. Dorfman told Codinha "to put that f___ing shit away, nobody wants to see that." When Dorfman said this, Codinha hid behind a pole and, like a "scared child," stuck his head out to see if Dorfman was still there. Dorfman went to his residence and called the police.

In defense, Codinha's theories included a claim that he was merely urinating and that Dorfman's accusations against him were motivated by Dorfman's desire to stop this type of behavior in his neighborhood.

The jury found Codinha guilty of indecent exposure. Codinha admitted that he had suffered a previous conviction for lewd act on a child, which elevated the indecent exposure offense from a misdemeanor to a felony. ( 314, 288, subd. (a).) Codinha also admitted he had served a prior prison term and failed to remain free from custody for five years before committing the current felony offense ( 667.5, subd. (b)), and that he had incurred three strike prior convictions ( 667, subds. (b)-(i)). The trial court struck two of the strike prior convictions, imposed a doubled upper term of six years based on one strike prior conviction, and imposed an additional year for the prior prison term enhancement, resulting in a total sentence of seven years.

DISCUSSION

I. Uncharged Sexual Offense Evidence

At trial,the prosecution presented evidence of an uncharged incident of indecent exposure committed by Codinha in April 2005, after the January 2005 charged offense. Codinha argues the trial court erred in admitting this evidence because (1) the facts did not support a finding that the uncharged conduct constituted the offense of indecent exposure, and (2) the evidence should have been excluded under Evidence Code section 352. Codinha additionally contends the trial court improperly instructed the jury regarding the uncharged offense evidence.

A. Background

Prior to trial, the prosecution moved to admit the uncharged offense evidence, describing the facts as follows. The incident occurred in the presence of Nick Basinski while he was working as a bike rover providing security services at a downtown parking structure. As part of his security rounds, Basinski rode through the parking structure about once an hour. At 2:00 a.m. on April 23, 2005, Basinski was in an elevator with Codinha, who was also working at the parking structure. Basinski noticed that Codinha's "penis [was] completely out of his pants, pulled through his fly . . . ." Codinha told Basinski that he was going to urinate off the fifth floor balcony.^[2] Thereafter, on two occasions occurring at 3:00 a.m. and 4:00 a.m., when Basinski was riding his bicycle past the parking structure, he saw Codinha standing in a brightly lit area that was visible from the street. Codinha was masturbating with his hand inside his pants, although his penis was not visible. On both occasions, when Codinha saw Basinski, Codinha quickly removed his hand and stepped back from the lit area.

The prosecution contended the uncharged offense evidence was admissible under Evidence Code section 1101, subdivision (b) (section 1101(b)) to negate an inadvertent exposure and to prove Codinha's specific intent to direct public attention to his penis for his own sexual arousal or to sexually offend another person. Additionally, the prosecution asserted the evidence was admissible under Evidence Code section 1108 (section 1108) as a sexual offense relevant to prove propensity to commit sexual offenses.

Relying on Evidence Code section 352 (section 352), Codinha argued the uncharged offense evidence should not be admitted under sections 1101(b) or 1108 because it was more prejudicial than probative and would confuse the jury. He asserted the uncharged conduct was not sufficiently relevant to prove his intent because it occurred after the current offense. Additionally, he contended the evidence did not satisfy the indecent exposure elements of (1) exposure of his genitals, and (2) intent to direct public attention to his genitals for sexual arousal or affront. He argued the failure of the conduct to satisfy the indecent exposure elements supported exclusion under section 352, and additionally made the conduct inadmissible under section 1108 because it did not constitute one of the sexual offenses enumerated in section 1108. To support this latter argument, Codinha pointed out that when he exposed his penis in the elevator there was no masturbation or touching, and when he was subsequently seen with his hands in his pants there was no exposure of his penis.

The prosecution maintained that the April 2005 uncharged conduct was highly relevant because it occurred close in time to the January 2005 charged conduct. Further, the prosecution argued the conduct satisfied the elements of indecent exposure because (1) there was exposure in the elevator, and (2) the requisite specific intent at the time of the exposure could be inferred from the close proximity in the brightly lit elevator and the subsequent masturbatory acts in a brightly lit area visible from the street.

After considering the parties' arguments and underscoring its duty to evaluate the evidence under section 352, the trial court ruled that the evidence should be admitted, and that it was admissible under both sections 1101(b) and 1108. However, the court stated it would instruct the jury only regarding section 1108 because it would be too confusing if the jury was presented with instructions regarding both Evidence Code sections. Accordingly, the trial court instructed the jury in the language of Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 1191, as follows:

"Now, specifically regarding the incident that Mr. Basin[s]ki testified, the People presented evidence that the defendant committed the crime of indecent exposure that was not charged in this case. The crime had been defined for you elsewhere in these instructions. You may, and the operative word is you 'may' consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense.

[] . . . []

"If you decide the defendant committed the uncharged offense, you may but you are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and based on that decision also conclude that the defendant was likely to commit and did commit indecent exposure as charged in count 1, the only count.

"If you conclude the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the indecent exposure. The People must still prove each element of the substantive charge beyond a reasonable doubt. Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant's intent."

B. Analysis

1. Admission of the Uncharged Sexual Offense Evidence

Evidence of uncharged offenses is generally inadmissible to prove criminal disposition. (Evid. Code,  1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, uncharged offense evidence may be admissible under section 1101(b) for the limited purpose of proving such matters as intent or common plan. (People v. Kipp, supra, 18 Cal.4th at p. 369.) Further, the evidence may be admissible to show a propensity to commit sexual offenses if it falls within the exception set forth in section 1108 for other sexual offenses when a defendant is charged with a sexual offense. (People v. Falsetta (1999) 21 Cal.4th 903, 907; People v. Soto (1998) 64 Cal.App.4th 966, 983-984.) Here, although the trial court found the evidence was admissible under both sections 1101(b) and 1108, it only instructed the jury regarding section 1108. Accordingly, we evaluate whether the trial court erred in admitting the evidence under section 1108.

a. Sufficient Evidence of Uncharged Sexual Offense

To be admissible as sexual offense propensity evidence under section 1108, the uncharged misconduct evidence must constitute one of the sexual offenses specified in section 1108. ( 1108, subd. (d)(1).) Indecent exposure is one of the offenses specified in section 1108. ( 1108, subd. (d)(1)(A), 314.) Codinha argues the uncharged misconduct occurring in April 2005 did not satisfy the elements of the indecent exposure offense.

To obtain admission of uncharged offense evidence, it is not necessary for the prosecution to prove beyond a reasonable doubt that the uncharged offense occurred. Rather, the jury may consider the evidence if it is persuaded by a preponderance of the evidence that the defendant committed the uncharged offense. (People v. Carpenter (1997) 15 Cal.4th 312, 382.) To determine admissibility, the trial court makes a preliminary determination of whether the proffered evidence is sufficient for the jury to find the uncharged offense true by a preponderance of the evidence. (See People v. Simon (1986) 184 Cal.App.3d 125, 132-134.) We review the trial court's determination of this preliminary fact under the abuse of discretion standard. (People v. Lucas (1995) 12 Cal.4th 415, 466.)

To establish indecent exposure, " '(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present other persons to be offended or annoyed thereby.' " (People v. Carbajal (2003) 114 Cal.App.4th 978, 982; 314, subd. 1.) Nudity alone does not suffice to show the offense; rather, the defendant must have a lewd, sexually motivated intent. (In re Smith (1972) 7 Cal.3d 362, 365-366.) Thus, the defendant must intend not only to engage in the exposure, but must also intend "to direct public attention to his or her genitals for purposes of sexual arousal, gratification or affront." (Id. at p. 366.) The requisite lewd intent exists if the defendant acted for the purpose of his or her own sexual arousal, or to sexually arouse or sexually affront others. (See People v. Archer (2002) 98 Cal.App.4th 402, 405-406, & fn. 2.) Although exposure of the genitals in the presence of another is necessary to establish the offense, it is not necessary that the defendant touch his or her genitals, nor is it necessary that someone actually see the defendant's genitals. (People v. Massicot (2002) 97 Cal.App.4th 920, 932; People v. Carbajal, supra, 114 Cal.App.4th at pp. 982-986; People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765-1766; People v. Meeker (1989) 208 Cal.App.3d 358, 362.)

The trial court did not abuse its discretion in concluding there was sufficient evidence to support a jury finding that Codinha exposed his penis to Basinski in the elevator for sexual purposes so as to establish the offense of indecent exposure. The jury could reason that if Codinha had exposed his penis accidentally or for the purposes of urination, he would have immediately placed his penis back inside his pants and closed his zipper once his penis was seen by Basinski. Instead, he left his penis exposed and told Basinski he intended to urinate on another floor. Codinha's subsequent conduct of masturbating in a visible area buttressed the inference that Codinha's earlier exposure was designed to be seen by Basinski and was sexually motivated. It was not necessary that Codinha's subsequent masturbatory conduct include exposure in order to establish the offense; the masturbation was merely additional circumstantial evidence relevant to the issue of Codinha's intent during the earlier exposure. Because the jury could find by a preponderance of the evidence that the April 2005 incident constituted the sexual offense of indecent exposure, the trial court did not err in concluding the uncharged offense evidence was admissible under section 1108.

b. Section 352

Codinha also argues the trial court abused its discretion under section 352 in admitting the uncharged sexual offense evidence. When considering admission of uncharged sexual offense evidence under section 1108, the trial court must conduct a careful analysis under section 352 to ensure that the defendant's rights to a fair trial are safeguarded. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-918.) To determine whether otherwise admissible evidence should be excluded under section 352, the trial court assesses whether the probative value of the evidence is outweighed by the danger of undue prejudice, confusion, or time consumption. (Falsetta, supra, at p. 917.) When evaluating the evidence, the trial court considers such factors as "its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission . . . ." (Ibid.) A trial court's ruling under section 352 will not be disturbed on appeal unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)

Codinha argues the trial court abused its discretion under section 352 because the facts did not show a sufficient certainty that the incident witnessed by Basinski satisfied the elements of indecent exposure. As we explained above, the evidence was sufficient for the jury to find the conduct constituted indecent exposure based on the act of exposure followed by overt sexual activity in public view. For the same reasons, the trial court could reasonably conclude that it was sufficiently certain that Codinha acted for sexual purposes when exposing his penis in the elevator so as to make the evidence more probative than prejudicial.

Codinha also asserts the uncharged offense evidence was not relevant to prove his sexual intent during the charged incident because the uncharged incident occurred after the charged incident. The fact that conduct similar to the charged conduct occurs after, rather than before, the charged conduct does not in and of itself detract from the relevancy of the similar conduct. The factor that makes the uncharged offense relevant to the issues of propensity and intent is the repeated nature of the similar conduct, not the temporal order in which the charged and uncharged offenses occurred. (See People v. Medina (2003) 114 Cal.App.4th 897, 902-903.) The trial court was not required to exclude the uncharged offense evidence merely because it occurred approximately three months after the charged offense.

Codinha argues the uncharged offense evidence was not sufficiently relevant because in the charged incident he masturbated with his penis exposed whereas in the uncharged incident he did not expose his penis while masturbating. There is no strict similarity requirement for admission of sexual offense evidence under section 1108. (See People v. Frazier, supra, 89 Cal.App.4th at pp. 40-41; People v. Soto, supra, 64 Cal.App.4th at p. 984.) In any event, there are sufficient similarities between the uncharged and charged incidents to support admission. In both instances, Codinha exposed his penis to another male in a parking lot and engaged in masturbation at or near the time of the exposure. The trial court reasonably concluded that the uncharged exposure was relevant to support an inference that Codinha had a tendency to expose himself for sexual purposes.

Codinha asserts the uncharged offense evidence was more prejudicial than probative because there was a danger the jury would want to punish him for the uncharged offense. The uncharged exposure was not more egregious than the charged exposure so as to tempt the jury to convict in order to punish for the uncharged incident. The trial court was not required to exclude the evidence on this basis.

2. Instruction on the Uncharged Sexual Offense Evidence

As set forth earlier, the trial court instructed the jurors regarding the use of the uncharged sexual offense evidence under section 1108, telling them (1) the evidence could be used to infer that Codinha was disposed to commit sexual offenses, and (2) the evidence should only be used to determine Codinha's intent. Codinha argues that if the evidence was only admissible to prove intent, the court should not have told the jury it could also consider it to show Codinha's propensity to commit sexual offenses.

In a criminal case, a trial court has a duty to ensure that the instructions it gives are correct and complete. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) The instruction given by the trial court followed the language of the CALCRIM instruction applicable to section 1108 (see CALCRIM No. 1191) and was apparently given with the parties' approval. The last sentence instructing the jury to consider the evidence only for a particular purpose (here, intent) is included in CALCRIM No. 1191. The CALCRIM bench notes state that this last sentence should be given on request. (Bench Notes to CALCRIM No. 1191 (2006-2007) p. 1070.)

The trial court's instruction that the evidence could be used to show propensity to commit sexual offenses and should be confined to the issue of intent was not inappropriate under the facts of this case. Under the terms of section 1108, uncharged sexual offense evidence is admissible for purposes of showing a disposition to commit sexual offenses. (See People v. Falsetta, supra, 21 Cal.4th at p. 907.) Thus, the trial court properly instructed the jury that it could use the evidence to infer sexual offense propensity. Further, when evaluating the current offense, the jury had to determine (1) whether Codinha exposed his penis to public view, and (2) if so, whether he had a sexual intent. The essential purpose of admitting the uncharged offense evidence was to evaluate the intent issuei.e., whether Codinha had a tendency to expose himself with sexual intent so as to support an inference that the charged exposure was for sexual purposes rather than for purposes of urination as suggested by the defense. Under these circumstances, the trial court did not err by instructing the jury that it could consider the evidence for sexual offense propensity purposes to evaluate the issue of intent.

Codinha also argues that once it was determined the uncharged offense was relevant to evaluate intent, the court should not have given the instruction applicable to section 1108 (CALCRIM No. 1191), but rather should have given the instruction applicable to section 1101 (CALCRIM No. 375). Because the evidence was admissible under section 1108 and intent was the key issue, the trial court did not err in instructing the jury in the language of CALCRIM No. 1191, including the optional portion of the instruction limiting the use of the evidence to the issue of intent. Thus, although intent was the pivotal issue, the court was not required to give CALCRIM No. 375 rather than CALCRIM No. 1191.

Further, contrary to Codinha's suggestion, even if the jury had been instructed in the language of CALCRIM No. 375 it would not have been told it was precluded from considering the evidence for purposes of showing sexual offense propensity. CALCRIM No. 1191 states that the jury may use the sexual offense evidence to conclude the defendant was "disposed or inclined to commit sexual offenses," whereas CALCRIM No. 375 states the jury should not conclude from the uncharged evidence that the defendant "has a bad character or is disposed to commit crime." The difference between disposition to commit sex offenses and to generally commit crimes distinguishes the two instructions. However, apparently to avoid confusion, the bench notes to CALRIM No. 375 state that the limiting portion of the instruction (stating not to consider the evidence to show bad character or disposition to commit crime) should not be given if the court is also instructing the jury under section 1108. (Bench Notes to CALCRIM No. 375, supra, p. 164.) Regardless of which instruction the trial court used (or if it used both), the jury would not have been precluded from using the evidence to infer sexual offense propensity.

II. Apprendi Error

Codinha argues the trial court's imposition of an upper term sentence based on facts not found by the jury beyond a reasonable doubt violates his jury trial rights under the Apprendi rule.

A. Background

The information presented at sentencing showed that Codinha had three strike prior convictions for committing lewd acts involving minor boys and two prior convictions for indecent exposure. During the course of his criminal history, his probation was repeatedly revoked and he served a lengthy prison term. The first lewd act offense occurred in 1985 when he orally copulated a 13-year-old boy. While the 1985 lewd act proceedings were pending, he committed a federal offense by arranging to have his methamphetamine sales operation continued while he was incarcerated. The two prior indecent exposure convictions arose from a series of exposures he committed in 1992 and 1993. While he was out on bail for these offenses in 1993, he committed the second and third lewd act offenses by fondling the penis of a 12-year-old boy and of a 13-year-old boy. His probation was revoked in April 1989, February 1990, and November 1990. In December 1993 he received an eight-year prison sentence for the 1993 indecent exposure convictions and a 15-year sentence for the 1993 lewd act convictions.

After serving his prison terms, sexually violent predator proceedings were pursued. Codinha was found not to qualify and was released in December 2002. In February 2003, he was arrested for violating parole for possession of adult pornography. He was released from custody in September 2003 after sexually violent predator proceedings were again resolved in his favor. He was discharged from parole on January 28, 2005. He committed the current indecent exposure offense on January 29, 2005.

After reviewing psychological and other information about Codinha provided by the prosecution and defense, the trial court dismissed two of Codinha's three strike prior convictions based on findings that a life sentence was excessive punishment for the current offense, the 1986 strike prior was remote, and Codinha had committed no serious offenses after the strike priors. The court selected the upper term of three years for the indecent exposure offense, doubled to six years based on the one strike prior conviction. The court imposed one year for the prior prison term enhancement, giving Codinha a total sentence of seven years.

To support imposition of the upper term, the court found that Codinha had served a prior prison term and his prior performance on probation or parole was unsatisfactory. When discussing its decision not to make Codinha eligible for probation by striking a third strike and its decision to impose a seven-year term, the court also stated that Codinha had engaged in despicable acts in the lewd conduct offenses; he had "two instances in the past" (apparently referring to indecent exposure); he had a significant prison commitment in the past; he committed the current offense one day after being discharged from parole; and although the current offense was "low-grade" he had a "nasty record."

B. Analysis

A defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely); Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 860 (Cunningham).) Under Apprendi and its progeny, the statutory maximum is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303.) Based on the high court's definition of "statutory maximum," if the sentencing judge selects a punishment which under the state penal statute requires factual findings beyond the facts encompassed in the guilty verdict, such judicial fact finding violates the defendant's jury trial right. (Id. at pp. 865, 868-869.) An exception to the Apprendi rule allows a sentencing court to enhance punishment beyond the statutory maximum based on "the fact of a prior conviction." (Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at p. 860.)

Prior to a recent amendment of section 1170, subdivision (b), the statutory maximum in California was the middle term. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.)^[3] However, the California Supreme Court recently determined that even under the former version of the statute, the upper term is converted to the statutory maximum if the sentencing record shows that at least one aggravating circumstance was established in accordance with the Apprendi rule so as to render the defendant eligible for the upper term. (People v. Black (2007) 41 Cal.4th 799 (Black II)). In reaching this conclusion, the Black II court focused on (1) the United States Supreme Court's advisements that the key constitutional considerations are whether the state statute forbids the trial court from increasing the sentence above a certain term without judicial findings beyond the jury's verdict and thus the defendant is legally entitled to that particular term, and (2) the feature of California's sentencing scheme that provides that a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Black II, supra, at pp. 812-816.) Considering these matters, the court in Black II reasoned that when one aggravating circumstance has been established in accordance with constitutional requirements, the trial court is not forbidden from imposing the upper term, the defendant is not legally entitled to the middle term, and it follows that the upper term is the statutory maximum. (Ibid.)

The Black II court concluded that "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) Thus, once the defendant is eligible for the upper term based on the establishment of a constitutionally permissible fact, "the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Id. at p. 813.)

Several of the aggravating factors cited by the trial court fall within the prior conviction exception to the Apprendi rule and thus rendered Codinha eligible for the upper term. In Black II, the California Supreme Court examined the scope of the prior conviction exception and defined it as including "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Black II, supra, 41 Cal.4th at p. 819.) Illustrative of this interpretation of the prior conviction exception, the Black II court held the aggravating factors of numerous or increasingly serious prior convictions were within the prior conviction exception. The Black II court explained that findings of numerousness or increasing seriousness "require consideration of only the number, dates, and offenses of the prior convictions alleged"; the relative seriousness "may be determined simply by reference to the range of punishment provided by statute for each offense"; and these types of determinations were " 'quite different from the resolution of issues submitted to a jury' " and more appropriate for a court. (Id. at pp. 819-820.)

The aggravating factors cited by the trial court included Codinha's service of a prior prison term and his prior unsatisfactory performance on probation or parole. The trial court's reliance on Codinha's service of a prior prison term and unsatisfactory performance on probation or parole qualified him for the upper term under the prior conviction exception. The facts that a defendant has served a prior prison term or has violated probation or parole can be determined from official records related to the prior conviction and do not require the court to make subjective factual determinations about the defendant's past criminal conduct.^[4] The record shows that Codinha served prison terms for his 1993 indecent exposure and lewd act convictions, and that his probation was repeatedly revoked during the course of his criminal history.

Codinha argues that under California's dual use rule his prior prison term cannot be used as an aggravating factor to make him eligible for the upper term because this fact was used to impose an enhancement. At sentencing, Codinha did not assert that the reliance on his prior prison term violated the dual use of facts rule; thus, assuming he had an opportunity to object, this issue is forfeited on appeal. (People v. Gonzalez (2003) 31 Cal.4th 745, 751.)

In any event, the assertion fails on its merits. Under the dual use of facts rule, a sentencing court may not impose the upper term based on a factor that is an element of the crime or the fact of an imposed enhancement. ( 1170, subd. (b); Cal. Rules of Court, rule 4.420(c), (d); see People v. Price (1984) 151 Cal.App.3d 803, 812; People v. Flores (1981) 115 Cal.App.3d 67, 79.) Regarding enhancements, the test for prohibited dual use of facts is "whether the trial court could have based the aggravating factor on evidence other than that which gave rise to the enhancement." (People v. Garcia (1995) 32 Cal.App.4th 1756, 1775, italics omitted.) Here, the record shows that Codinha served at least two prison terms, whereas only one prison term enhancement was imposed.

Codinha received an eight-year term for the 1993 indecent exposure convictions and a 15-year term for the 1993 lewd act convictions. These terms were apparently served concurrently. Because a prior prison term enhancement applies only to terms that are separately served ( 667.5, subds. (b), (g)), only one prior prison term enhancement was imposed. The trial court did not state it was selecting the upper term because Codinha had served both the eight-year and 15-year terms, but rather merely cited the fact that he had served a prior prison term. The trial court could properly rely on the prison term for one set of offenses to impose the enhancement, and the distinct prison term for the other set of offenses to impose the upper term without making dual use of the same fact. (Compare People v. Fernandez (1990) 226 Cal.App.3d 669, 681 [improper dual use of facts to impose both upper term and prior prison term enhancement based on one prison term]; cf. People v. Sandoval (1994) 30 Cal.App.4th 1288, 1304 [concurrent prison sentence imposed for two separate crimes allows two enhancements]; People v. Brandon (1995) 32 Cal.App.4th 1033, 1055 [same]; see also People v. Baird (1995) 12 Cal.4th 126, 132-134 [no dual use violation from reliance on fact of prior conviction to establish element of offense, and reliance on distinct fact of prior prison term for that same conviction to enhance punishment].)

Finally, Codinha argues the trial court could not rely on his prior lewd act offense to impose the upper term because the offense was used to elevate his crime from a misdemeanor to a felony. This assertion is unavailing. The elevation of a misdemeanor to a felony based on a prior conviction does not constitute an element of the offense or a sentence enhancement within the purview of the dual use proscription. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1517-1519; People v. Whitten (1994) 22 Cal.App.4th 1761, 1765-1766.) Moreover, Codinha has incurred three prior lewd act convictions, and only one was necessary to elevate his current offense to a felony.

Under the rule enunciated in Black II, because at least one constitutionally permissible aggravating factor was established, the upper term was the statutory maximum and there was no constitutional violation from the court's selection of this term.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] Subsequent statutory references are to the Penal Code unless otherwise specified.

^[2] At trial, Basinski explained that he did not see Codinha's penis until he (Basinski) was exiting the elevator on the top floor, at which point Codinha told him that he was going to go back down to the fifth floor and urinate off the balcony.

^[3] In Cunningham, the United States Supreme Court abrogated the California Supreme Court's ruling in People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (2007) ___ U.S. ___, 127 S.Ct. 1210, that the upper term was the statutory maximum. The Cunningham court held that the statutory maximum was the middle term because under California's sentencing scheme the middle term is the presumptive term and the trial court is not permitted to select an upper term without a judicial finding of an aggravating fact that was not an element of the offense found by the jury. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.) In response to Cunningham, effective March 30, 2007, the California Legislature amended section 1170, subdivision (b) to make the middle term a discretionary rather than presumptive term. (Stats. 2007, ch. 3,  2; People v. Sandoval (2007) 41 Cal.4th 825.) Our analysis is premised on the former version of the statute.

^[4] Because we conclude the prior prison term factor is within the prior conviction exception, we need not discuss the Attorney General's argument premised on the fact that Codinha waived his statutory jury trial right and admitted he had served a prior prison term.