P. v. Bennett

Filed 10/5/07 P. v. Bennett 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Arthur Harrison and Brian S. McCarville, Judges.^* Affirmed.

Charlotte E. Costan, 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, and Sabrina Y. Lane-Erwin, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Damon Cedric Bennett engaged in a gun battle with Jamal Moreno in broad daylight in a neighborhood packed with children and adults. Moreno, while driving his car through the neighborhood, approached defendant, who was on foot. Defendant started shooting at Morenos car. Moreno shot back at defendant. During the gun battle, a nine-year-old girl was shot in the leg with a stray bullet. Although defendant was originally charged with Moreno, Moreno pled guilty during trial.

Defendant now contends:

1. The trial court erred by denying his motion for mistrial when his codefendant pled guilty during trial.

2. The introduction of gang testimony deprived defendant of a fair trial.

3. The prosecutor improperly evoked the jurors passions and prejudices during closing argument.

4. There was insufficient evidence presented to support defendants convictions.

5. By imposing the upper term on count 6, the trial court violated the principles stated in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).

We find no prejudicial error. Hence, we will affirm.

I

FACTUAL BACKGROUND

A. The Shooting

On May 17, 2005, about 7:00 p.m., Ana and Diana Orozco were walking on McKinley Street in Highland. As they were walking, the girls saw a red car driving on McKinley Street. Diana described the driver of the red car as a Black male, approximately 19 to 20 years old. Ana and Diana saw a boy, whom they described as Black and approximately 17 to 18 years old, in front of them on the street holding a gun. The red car stopped. The boy on the street shot at the person in the red car. Ana and Diana saw the driver of the red car holding a gun and then heard gunshots come from the red car. Ana and Diana hid behind a truck.

Diana was shot in the right leg. She went to the hospital that day and had a bullet removed from her leg about three months later.

San Bernardino County Sheriffs Detective Dennis Canada responded to the location approximately five minutes after the shooting. The area where the shooting occurred consisted of homes and apartments. Numerous children lived in the area. It was still daylight when Detective Canada arrived. Detective Doug Wolfe was already at the scene attending to Diana. When Detective Wolfe arrived, there were approximately 20 people still in the area.

Diana told Detective Canada that a red car was involved in the shooting. No casings were found in the area of the shooting. Detective Canada explained that since no casings were found, a revolver was probably used by the shooter on the street. Potential witnesses in the area were reluctant to talk to either detective.

B. Sade Carters Trial Testimony

On the day of the shooting, Sade Carter lived with her grandmother at 7842 McKinley Street. Defendant lived in the neighborhood, but she claimed she did not know him personally. Defendant was known as Little Toon.^[1] Just prior to the shooting, Carter was walking alone on McKinley Street to a nearby store. There were numerous children and adults outside their homes.

As Carter was walking to the store, Moreno, a friend of hers, drove by in his red car. Moreno did not stop to talk to Carter but did say hello to her. Carter then heard gunshots from what seemed to be more than one gun. Carter did not know who was shooting and denied that she saw defendant on the street.

Carter admitted that she had told Deputy Kevin Snyder before trial that she had observed the shooting. However, at trial, Carter claimed not to remember much of the day of the shooting or what she had told Deputy Snyder. Specifically, she did not remember telling Deputy Snyder that Moreno had motioned to her to come to his car when he stopped but that she had refused; that she had seen defendant standing in front of his residence located at 7761 McKinley Street just prior to the shooting; that she had heard someone yelling, Thats the mother fucker or Get the gat just prior to the shooting; that she had seen defendant run out into the street and start shooting at Morenos car; that she had seen defendant with a wheel-style gun; or that defendant had stopped shooting when he got within two feet of her.

Carter had heard of the 99th Street Mafia gang, but she did not recall telling Deputy Snyder that defendant was a 99th Street Mafia gang member.

Carter recalled being shown two six-pack photographic lineups by Deputy Snyder. She admitted she identified defendant and Moreno from the lineups. She also acknowledged that she signed an admonition form that included language that she was to identify persons in the photographs if they were involved in the crimes. Regardless, Carter claimed at trial that she had only identified defendant and Moreno as persons she knew, not as the shooters.

Carter was shown a summary of the interview between her and Deputy Snyder.^[2] After reading the summary, she denied that it refreshed her recollection as to what she had told Deputy Snyder about the shooting. Carter denied she was scared of defendant or Moreno. Carter had told Deputy Snyder that another person who lived in the neighborhood, known as Big Toon, was the father of her baby. Carter claimed at trial that he was not the father. Carter had seen defendant with Big Toon and had heard that Big Toon was a 99th Street gang member.

Carter claimed for the first time at trial that she had heard about the details of the shooting from her grandmother, who had heard the details from their neighbors. She testified that Deputy Snyder had told her he would arrest her if she did not go to the police station to talk to him. Carters grandmother kicked her out of the house because she would not talk to Deputy Snyder.

C. Carters Pretrial Statements

Deputy Snyder was assigned to the sheriffs departments gang detail. The area where the shooting took place was a high-crime area. Deputy Snyder had been part of an action group in the neighborhood and had some contacts in the community. One of his contacts in the community advised him to speak with Carter about the shooting. Deputy Snyder found Carter at her grandmothers house. Carter told him that she had been outside her residence at the time of the shooting and had witnessed the incident.

Carter told Deputy Snyder she had been walking north on McKinley Street when she saw a red car driving south. Moreno, whom she described as a friend of her brothers, was driving the red car. Moreno motioned for Carter to walk to the car, but she refused. Moreno continued to drive down McKinley. As Moreno passed a group of people who were at 7761 McKinley, Carter heard one of the persons in the group say, Thats that mother fucker. Get the gat, cuz. Get the gat.

Carter motioned to Moreno to leave the area. She then observed defendant run into the street. Defendant fired a handgun at Moreno. Carter described the handgun as having a wheel on it. Deputy Snyder indicated this was consistent with the evidence in that no casings were found in the street, and a revolver would retain the casings in the wheel. Carter was not sure if Moreno shot back at defendant.

Deputy Snyder searched the apartment where defendant lived with his mother. In defendants bedroom, there was 99th Street Mafia Crips gang graffiti on the wall and on notebooks.

Deputy Snyder contacted Carter and advised her that he wanted her come to the police station to look at a photographic lineup. Deputy Snyder prepared two six-pack photographic lineups and then contacted Carter. Deputy Snyder was advised by her grandmother that Carter had packed her bags and left. Carter contacted Deputy Moreno a month later and went to the police station.

Prior to their interview at the police station, Deputy Snyder admonished Carter that she could be charged as an accessory if she concealed information regarding the shooting. Deputy Snyder tape recorded the interview.^[3] During the interview, Deputy Snyder showed Carter the two photographic lineups. He made it clear that he was showing her the photographic lineups so she could identify the individuals who committed the shooting. She chose defendants photograph. She also identified Morenos photograph as the person in the red car. Carter again told Deputy Snyder that defendant had been on the street and shot at Moreno in the car. She was unsure if Moreno had shot back. Defendant stopped shooting when he got within two or three feet of her. Carter told Deputy Snyder she was pregnant with Big Toons baby.

Based on Deputy Snyders investigation, he discovered Carter had dated Moreno. During previous patrols in the neighborhood, Deputy Snyder had seen Big Toon, defendant, and Carter together.

Defendant presented no evidence on his behalf.

II

PROCEDURAL BACKGROUND

A jury found defendant guilty of assault with a firearm (Pen. Code, 245, subd. (a)(2)),^[4]shooting at an occupied motor vehicle ( 246), and attempted murder ( 664/187, subd. (a)). The jury also found as an enhancement to the assault and shooting at an occupied motor vehicle counts that defendant personally used a firearm ( 12022.5, subd. (a)). As to the attempted murder conviction, the jury found true that defendant personally discharged a firearm ( 12022.53, subds. (b), (c)). The trial court sentenced defendant to a total of 33 years 4 months.

III

MOTION FOR MISTRIAL

Defendant contends that the trial court denied him his right to a fair trial and an impartial jury by refusing to declare a mistrial after Moreno pled guilty in the middle of trial.

A. Additional Factual and Procedural Background

Moreno was part of the trial during jury selection, voir dire, impaneling of the jury, and preinstruction to the jury. Moreno was also still part of the case when Detective Travis Walker testified about an encounter he had had with Moreno prior to the shooting, as discussed in more detail, post. Detectives Canada and Wolfe then testified about their initial investigation of the shooting, as set forth, ante.

On the following day, the trial court stated for the record that Moreno had pled guilty and was no longer part of the case. Defendant moved for a mistrial on the ground that proceeding with the trial violated his due process rights. Defendant explained that by virtue of the fact that Moreno was out of the case, the jury would find him guilty because he was the only one left in the case. Defendant claimed it was human nature for the jurors to wonder about what had happened to Moreno and would believe that if defendant was not guilty, he would also be out of the case.

The trial court advised the parties that it intended to instruct the jury with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 206. The trial court stated that it could certainly envision a case in which continuing a trial when one of the defendants had pled guilty could be prejudicial, but it concluded that [r]ight now its not occurring to me that that would occur in this case. The trial court asked the defense to provide specific prejudice other than the human nature argument. Defense counsel again stated that since the jury would not be informed why Moreno was no longer in the case, it would speculate as to the reasons for his departure. The mistrial motion was denied.

The trial court immediately instructed the jury as follows: The charges against Mr. Jamal Moreno, the defendant, no longer need to be decided in this case. [] Do not speculate about or consider in any way why the charges against defendant Jamal Moreno do not need to be decided. The trial court repeated the instruction in the final instructions.

B. Analysis

A trial court should grant a motion for mistrial only when a partys chances of receiving a fair trial have been irreparably damaged [citation], that is, if it is apprised of prejudice that it judges incurable by admonition or instruction [citation]. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] Accordingly, we review a trial courts ruling on a motion for mistrial for abuse of discretion. [Citation.] (People v. Avila(2006) 38 Cal.4th 491, 573.)

The trial court did not abuse its discretion in denying defendants mistrial motion. At the time Moreno pled guilty, no evidence had been introduced that was solely admissible against Moreno. Defendants mere speculation that the jury would hold him responsible because they would assume Moreno was set free is not persuasive. Furthermore, the trial court immediately admonished the jury to not speculate as to why Moreno was no longer part of the case. We must assume that the jury followed the courts instruction unless the record shows otherwise. (People v. Burgener (2003) 29 Cal.4th 833, 874; see People v. Pinholster (1992) 1 Cal.4th 865, 943.)

Defendant claims the record shows that the admonition was inadequate because the jurors discarded signed verdict forms reflecting convictions on lesser included offenses. It is true that the clerk found discarded verdict forms in the jury room. These forms reflected convictions of lesser included offenses. Both counsel spoke with the trial court and stated on the record they believed that the verdicts and findings read in court were the intended verdicts and findings. Nothing in the record supports defendants speculation that the jurors discarded the forms because they did not know if Moreno would be punished for shooting Diana, and therefore they convicted defendant on the greater charges. As noted by the trial court, it believed the jurors were confused as to what forms to fill out first. We will not speculate as to the reasons for the discarded forms as requested by defendant and do not find this to rebut the presumption that the jurors followed the trial courts admonition.

We therefore conclude that defendant has not shown that the trial court abused its discretion by denying defendants mistrial motion.

IV

GANG TESTIMONY

Defendant contends that the erroneous admission of gang testimony deprived him of his right to a fair trial.

A. Additional Factual and Procedural Background

The information charged defendant with having committed the instant crimes for the benefit of, at the direction of, or in association with a criminal street gang. ( 186.22, subd. (b)(1)(A).) However, sometime during the trial, the People determined it did not have enough documentary evidence to pursue the gang allegations, and they were dismissed. However, the following gang evidence already had been presented to the jury.

Before Moreno pled guilty, Detective Travis Walker, who had previously qualified as a gang expert, testified regarding an encounter he had had with Moreno on April 7, 2005. Detective Walker stopped Moreno in an area known as the Projects. Although the Projects were previously controlled by a gang that consisted of both Crips and Bloods, it was beginning to be controlled exclusively by the Bloods. Moreno was selling narcotics in the Projects Bloods gang territory. At the time that Detective Travis stopped Moreno, he was in possession of a firearm and was driving a red car. Detective Travis believed that Moreno could not sell drugs in the area unless he was associated with, or had the permission of, the Projects Bloods gang.

Deputy Snyder, who was assigned to the departments gang detail, testified that, two weeks prior to the instant shooting, 99th Street Mafia Crips graffiti had shown up on the walls in the area where the shooting took place. Deputy Snyder determined this was a new gang trying to take control of the neighborhood.

Deputy Snyder also testified at trial regarding his pretrial interview with Carter. When he was asked whether Carter stated she knew that defendant claimed a gang, defendant objected on hearsay grounds and foundation grounds. The objection was overruled. Deputy Snyder testified that Carter told him that defendant was a 99 Mafia member. Deputy Snyder also testified, after defendants hearsay and foundation objection was overruled, that Carter stated in the interview that Moreno and defendant had a beef with each other. Carter claimed they had been having this disagreement prior to her knowing either of them, and she did not know the reason for the problem between them.

Deputy Snyder then testified he was familiar with the Projects Bloods gang and 99th Street Mafia Crips gang. It was Deputy Snyders opinion that they were rival gangs.

After Deputy Snyders testimony, defendant brought a motion for mistrial. Defendant referred to the testimony by Deputy Snyder that Carter had stated at the interview that Moreno and defendant were having a beef. Defendant argued that Carter did not testify in court as to the disagreement between the two, and the People never inquired regarding the statement while she was on the stand. Defendant argued the testimony was hearsay and extremely prejudicial. Further, there was no foundation as to how she obtained this information. Since the information was now before the jury, defendants only remedy was a mistrial.

The People responded that Carter had testified at trial that defendant did belong to a gang, but she could not recall the gang name; however, she had clearly stated in the interview that it was the 99thStreet gang. Carter also denied knowing that Moreno was associated with a gang, when she had stated at the interview that he was a Projects Bloods member.

The trial court noted that the beef comment could refer to any type of rivalry, not necessarily a gang rivalry. It was not so prejudicial to warrant a mistrial. Further, the statements made pretrial regarding Morenos gang membership were admissible as inconsistent statements. The mistrial motion was denied.

While discussing the instructions, defendant brought another mistrial motion based on the prosecution not pursuing the gang allegations. Defendant argued that he had based his trial strategy on having to respond to the allegations and would have proceeded in a different manner at trial if he had known the allegations would be dismissed. The trial court ruled that the gang evidence was admissible to show motive regardless of the dismissal of the gang allegations. The trial court did not see any particular prejudice as a result of the gang testimony.

B. Analysis

Initially, defendant contends that the admission of gang evidence was erroneous, relying on Evidence Code section 352. However, as noted by respondent, defendant never raised this claim in the lower court. Defendant brought the claim in a mistrial motion.^[5] The failure to object waives the claim. (See Evid. Code, 353, subd. (a); People v. Marks (2003) 31 Cal.4th 197, 228.) We recognize that defendant presumably did not object on Evidence Code section 352 grounds in the lower court because, at the time the evidence was admitted, it was relevant to the gang allegations. However, as a result, the trial court never analyzed the evidence to determine whether its probative value was substantially outweighed by the undue prejudice its admission created.

We will therefore review the claim as a denial of the mistrial motion, the standard for which was set forth, ante. Under this standard, we conclude that the trial court did not abuse its discretion. Further, since we conclude that the evidence was relevant to show motive and that it did not render defendants trial unfair, it would have been proper for the trial court to admit the evidence under Evidence Code section 352.

The California Supreme Court has stated that, [i]n cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendants gang affiliation â€‘‑ including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like â€‘‑ can help prove identity, motive, . . . or other issues pertinent to guilt of the charged crime. [Citations.] (People v. Hernandez (2004) 33 Cal.4th1040, 1049-1050.) In other words, [a]lthough evidence of a defendants gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged â€‘‑ and thus should be carefully scrutinized by trial courts â€‘‑ such evidence is admissible when relevant to prove identity or motive [or knowledge and intent], if its probative value is not substantially outweighed by its prejudicial effect. [Citation.] (People v. Carter (2003) 30 Cal.4th 1166, 1194.)

Here, the gang testimony was indisputably relevant. Without the gang evidence, the jury was faced with evidence that Moreno drove up the street in his car, and defendant immediately grabbed a gun and then shot at him. There was no apparent explanation for the shooting. The gang evidence helped explain an otherwise random exchange of gunfire: It established that defendant and Moreno were rival gang members. Defendant had gang graffiti on his bedroom wall in an apartment located where the shooting took place. Carter told Deputy Snyder during their pretrial interview that defendant was a member of the 99th Street gang. Moreno was selling narcotics an area controlled by the Projects Bloods gang. Deputy Snyder testified the two gangs were rivals. This gang testimony was relevant to show a possible motive for the crime, which in turn helped to prove defendants identity. The evidence was also relevant as it corroborated Carters testimony that defendant was the shooter.

Defendant appears to claim that Deputy Snyders testimony regarding Carters statements prior to trial that the defendant was a 99th Street Mafia Crips gang member, that Moreno was a Projects Bloods gang member, and that the two were in some kind of dispute, was inadmissible hearsay. Initially, Carter did not remember at trial that she told Deputy Snyder that defendant was a 99th Street Mafia Crips gang member. In normal circumstances, the testimony of a witness that he does not remember an event is not inconsistent with a prior statement by him describing that event. [Citation.] (People. v. Green (1971) 3 Cal.3d 981, 988.) However, deliberate evasion in trial testimony must be viewed to constitute an implied denial of the prior statements. (Id. at pp. 988-989; see also Evid. Code, 1235.) As such, Deputy Snyders testimony that Carter told him prior to trial that defendant was a 99th Street Mafia Crips gang member was admissible as a prior inconsistent statement.

However, Carter was not asked while she was on the stand whether she told Deputy Snyder prior to trial that defendant and Moreno were involved in some sort of dispute or whether Moreno was a Projects Bloods gang member. As such, Deputy Snyders subsequent testimony regarding these pretrial statements indeed appears to be hearsay. However, we conclude the admission of Carters pretrial statements was not prejudicial. Detective Travis had already testified that it was his opinion that Moreno was somehow associated with the Projects Bloods gang. Deputy Snyder provided testimony that he found 99th Street Mafia Crips gang graffiti in defendants bedroom and that these two gangs were rivals. The jury could deduce from this evidence alone that the shooting was committed because defendant and Moreno were in rival gangs, without relying on Carters testimony.

In addition, to the extent that it could be argued the gang testimony as a whole was improperly admitted, the erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. [Citations.] (People v. Avitia (2005) 127 Cal.App.4th 185, 194.) The gang evidence in this case was limited. Unlike the cases cited by defendant, the evidence in this case was not overreaching (see People v. Bojorquez (2002) 104 Cal.App.4th 335, 344-345), and the gang evidence presented was specifically linked to showing defendant and Moreno were members of rival gangs to establish motive and identity (see Avitia, at pp. 194-195).

The key to this case was the believability of Carter. Carter identified defendant as the shooter, and it was up to the jury to determine her credibility. As will be discussed in more detail, post, we believe there was sufficient evidence to convict defendant based on Carters testimony. Although the gang evidence was relevant to explain a motive for the shooting and to corroborate her testimony, it was not the crux of the instant case. No one suggested that by virtue of defendants gang membership he was guilty. The prosecution presented limited argument on the issue and only did so to show the motive behind the shooting was that defendant and Moreno were in rival gangs, not to show that defendant had the propensity to commit the instant crime. We find no prejudice.

We conclude that the trial court did not abuse its discretion by denying the mistrial motion.

V

PROSECUTORS CLOSING ARGUMENT

Defendant contends that the prosecutor attempted to invoke the jurors passions and prejudices in order to convict him.

A. Additional Factual Background

Throughout the prosecutors argument, he presented a theme that defendant did not care that there were children and other innocent bystanders in the area when he shot at Moreno. All defendant cared about was killing Moreno. The prosecution then argued as follows: Thats why we have you, is to care. Because we know that day two people didnt. Damon and Jamal, they didnt care. [] Its when jurors decide that they are not going to care that criminal activity like this wins. Its when jurors stop caring that families in neighborhoods have to continue to avoid talking to the police. Its when jurors stop caring that gunfire puts little girls walking to the store in danger of being killed. Defendant objected on the ground that this was improper argument, appealing to the jurors emotions. The trial court responded, Perhaps and sustained the objection. The trial court then advised the jurors, The jurors will be admonished to disregard the last statement the prosecutor made. The prosecution then advised the jury that it wanted them to care about the evidence and the law.

B. Analysis

A prosecutors conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States 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.) 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.)

Although trying to inflame the jurys passion is improper, there is no prejudice where, as here, the comments are brief and isolated. (People v. Medina (1995) 11 Cal.4th 694, 759-760.) Here, the prosecutors statement was made in context with his theme that defendant and Moreno did not care about the innocent bystanders in the neighborhood. The prosecutors brief statement that the jury should care about the victims was not improper.

However, even if we were to consider the instant comment misconduct, we may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence. [Citation.] (People v. Barnett (1998) 17 Cal.4th 1044, 1133.) Although the trial court did not specifically find the prosecutors comment constituted misconduct, in an abundance of caution, the court sustained the objection and admonished the jury to disregard the prosecutors remark. Furthermore, the jury was also instructed not to let sympathy influence its decision (CALCRIM No. 101). There is no reason to believe the admonitions were not adequate to cure any prejudice.

We reject defendants argument that he was deprived of a fair trial by the prosecutors argument.

VI

THE SUFFICIENCY OF THE EVIDENCE

Defendant contends that there was insufficient evidence presented to support his convictions on all counts because they were based on the testimony of Carter.

Defendant does not dispute the elements of his convictions but, rather, argues the evidence was insufficient to connect him to the crimes. Specifically, he claims that his convictions were based solely on the testimony of Carter, which consisted of hearsay statements and was coerced by Deputy Snyder.

Defendant essentially asks us to reevaluate Carters credibility. However, on appeal, 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. [Citations.] (People v. Jones (1990) 51 Cal.3d 294, 314; see also People v. Tripp (2007) 151 Cal.App.4th 951, 955; Evid. Code, 312.)

The jurors were in the best position to evaluate Carters credibility. The jury was well aware that Carter changed her testimony at the time of trial. However, they were also presented with evidence that on two prior occasions she told Deputy Snyder that defendant was the shooter on the street. Furthermore, Carters testimony was corroborated by Ana and Diana, who also said Morenos car was red and described the shooter on the street as Black, and between 18 and 20 years old, which matched defendants description. No casings were found at the location, which indicated that the weapon fired was a revolver. This matched Carters description that defendant possessed a wheel-style handgun. Carter stated pretrial that defendant was a 99th Street Mafia Crips gang member, and 99th Street Mafia Crips gang graffiti was found in his bedroom. Based on the corroborating evidence and Carters two previous statements to Deputy Snyder, there was substantial evidence presented that defendant was the shooter.

Contrary to defendants claim, there is no competent evidence in the record that Carter was coerced into lying by Deputy Snyder. Carters claim that she was just relaying to Deputy Snyder statements she heard from her grandmother and neighbors was implausible. It was clear that Carter had a relationship with both Moreno and defendant, which explains why she was reluctant at trial to identify either of them. It is obvious Carter changed her story at the time of trial either to protect defendant or because she was scared.

Defendant alludes to the fact that Carters statements to Deputy Snyder during their first encounter two or three days after the shooting that were admitted at trial amounted to inadmissible hearsay.^[6] However, defendant fails to specify the hearsay statements. The only reference he makes is to statements Carter made during the taped interview, and he does not address in his reply brief respondents argument that the statements were introduced as inconsistent prior statements. As such, defendant has not properly presented the issue in the instant appeal.

Even if this court were to consider the merits of the claim, as discussed when addressing the gang testimony, ante, admission of Carters statements was either proper as prior inconsistent statements, or, even if they were improperly admitted, the evidence was presented through other sources. As such, any claim that inadmissible hearsay contributed to the verdict lacks merit.

The jury reasonably could have concluded that defendant was the involved in the shooting that day, and we find no reason to disturb that finding on appeal.

VII

APPRENDI/BLAKELY/CUNNINGHAM

Under the Sixth Amendment, the trial court cannot impose a sentence above the statutory maximum based on any fact â€‘‑ other than the fact of a prior conviction â€‘‑ not found by a jury beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. 856; see also Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435].) Defendant contends that, by imposing the upper term on count 6, the trial court violated this rule.^[7]

A. Additional Factual and Procedural Background

At the original sentencing hearing (conducted by a judge other than the trial judge) the court noted that it had read the probation report and the Peoples sentencing memorandum. The probation report listed as aggravating factors that (1) the crime involved great bodily harm; (2) the defendant was engaged in violent conduct, which indicated a serious danger to society; and (3) the defendants sustained petitions in juvenile delinquency proceedings were of increasing seriousness. The sole mitigating factor was that defendants prior performance on probation was satisfactory.

Initially, the court denied probation on two grounds. It reviewed defendants prior juvenile adjudications, finding, Petty theft as a juvenile finding, a misdemeanor; second-degree robbery initially was broken down to a misdemeanor; and then a first-degree residential burglary arrest which went down as a 496. It concluded, All of the crimes have been increasing in seriousness. It also stated that because the jury found the section 12022.53, subdivision (c) enhancement true, this was a proper ground for denying probation under California Rules of Court, rule 4.414(a)(2).

Thereafter, the court determined that the aggravating factors outweighed the mitigating factors. Defendant was then sentenced to the upper term of nine years on count 4, plus 20 years for the gun use enhancement. Defendant was also given a consecutive sentence of four years four months on count 2.

Defendant was brought back for resentencing because the proper base term was count 6. The trial judge resentenced defendant to the same aggregate sentence; however, it made count 6 the base term, imposing the upper term for the reasons we gave at the previous sentencing . . . .

B. Analysis

As the California Supreme Court has recently held, imposition of the upper term does not infringe upon the defendants 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. (People v. Black (2007) 41 Cal.4th 799, 816 (Black).) We conclude that at least one legally sufficient aggravating factor existed in the instant case: that defendants juvenile adjudications were numerous and of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)).

In Black, the court held that the prior conviction exception includes 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,supra, 41 Cal.4th at p. 819.) The court specifically addressed the aggravating factor at issue here. It found, The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.] (Id. at pp. 819-820.)

In the instant case, the sentencing court took into account the prior convictions and noted that they were of increasing seriousness. Clearly, the record supports that finding. Based on a review of the probation report, defendant had an initial conviction of petty theft in 2002; another petty theft conviction in 2003, for which he was initially charged with second degree robbery; and then a felony conviction for receiving stolen property in 2003. Defendant was therefore eligible for an upper-term sentence based on his prior convictions.

Defendant argues for the first time in his reply brief that his prior juvenile adjudications did not qualify as prior convictions. Although he raises the issue for the first time in the reply brief, which would normally bar consideration of the issue, he relies on a case that was published after the filing of his opening brief, and we will therefore address the issue.

In that case, People v. Nguyen (2007) 152 Cal.App.4th 1205, the appellate court concluded that prior juvenile adjudications did not qualify as prior convictions within the meaning of Apprendi because the juvenile is not afforded a jury trial. It determined that a juvenile adjudication could not be used as a strike pursuant to the three strikes law to impose on an adult a sentence in excess of the maximum sentence that could be imposed on the basis of a trial or admission by the defendant. (Nguyen, at p. 1239.)

We express no opinion as to the validity of the conclusion in Nguyen, as we believe it has no application to the instant case. Defendants sentence here was increased due to his recidivism. A recidivism determination is not based on the facts or circumstances of the prior convictions, but rather focuses on the number of prior convictions and whether they were of increasing seriousness. As stated in Black, the determination of this aggravating factor can be proven merely by looking at the times, dates, number, and seriousness of the charges. (Black, supra, 41 Cal.4th at pp. 819-820.)^[8] We conclude the trial court could rely solely upon the increasing seriousness of defendants juvenile record in imposing the upper term. (See People v. Tu (Aug. 27, 2007, A105905) ___ Cal.App.4th ___, ___ [2007 Cal.App. LEXIS 1409, *19-*27].) [finding that juvenile adjudications qualify within the prior conviction/recidivism exception to same extent as adult prior convictions as found in Black].)

We reject defendants claim.

VIII

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

MILLER

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^* Judge Harrison presided over the trial and conducted the second sentencing hearing; Judge McCarville conducted the original sentencing hearing.

^[1] The record also states that defendant was known as Baby Tunes and Baby Toon.

^[2] The summary of the interview has not been made part of the record on appeal, and therefore it is unclear what pretrial statements were included in the summary.

^[3] The tape and transcript of the interview were excluded by the trial court because the tape was not played in its entirety to the jury.

^[4] All further statutory references are to the Penal Code unless otherwise specified.

^[5] Defendant claims he brought a motion for mistrial arguing the gang evidence was prejudicial. However, after reviewing the record, the motion for mistrial was based on defendants hearsay and foundation objections to Carters testimony regarding the dispute between defendant and Moreno. At no time did defendant alert the trial court that it wanted it to make a determination about the gang evidence in general pursuant to Evidence Code section 352.

^[6] Carter was available for cross-examination at trial, precluding any claim that defendants Sixth Amendment rights were violated by the admission of her prior statements.

^[7] Although defendant never raised this issue in the lower court, we find no waiver, because under the case law, as it stood when defendant was sentenced, any objection below would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837.)

^[8] Defendant also argues for the first time in the reply brief that the record is devoid of any documentary evidence establishing the truth of the prior convictions. Since this issue could have been argued in the opening brief, we find it is not cognizable here. Regardless, defendant confuses the proof required in the instant case. Again, the Supreme Court has concluded that a trial court only need assess the number, dates, and offenses of the prior convictions in finding the aggravating factor of numerous or increasing seriousness of prior convictions. (Black, supra, 41 Cal.4th at pp. 819-820.) In that case, the lower court relied on the prosecutions sentencing memorandum and the probation report to support the factor. (Id. at p. 818.) Since this is exactly what the lower court did in the instant case, defendants claim lacks merit.