P. v. Flores

Filed 10/19/07 P. v. Flores 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Rafael A. Arreola, Judge. Affirmed as modified with directions.

A jury convicted Rafael G. Flores of evading an officer with reckless driving on two different occasions (Veh. Code,  2800.2, subd. (a); counts 1 & 5)^[1]; with being involved in a hit and run (Veh. Code,  20002, subd. (a); count 6); possession of a firearm by a felon (Pen. Code,^[2] 12021, subd. (a)(1); count 2); carrying a concealed firearm in a vehicle by a felon ( 12025, subd. (a)(1); count 3), and carrying a loaded firearm in a vehicle by a felon ( 12031, subd. (a)(1); count 4). Following a bifurcated proceeding, the trial court found true allegations Flores had served a prior prison term ( 667.5, subd. (b)) and had previously suffered three "no probation" felony prior convictions ( 1203, subd. (e)(4)) and three prior convictions that qualified as "strikes" under the three strikes law ( 667, subd. (b)-(i); 1170.12).^[3]

After denying Flores's motion for a new trial and granting his motion to strike two of his prior strikes, the court sentenced Flores to prison for a total of 11 years, consisting of an upper three-year term for the count 1 evading offense doubled under the three strikes law, consecutive 16-month terms for counts 2, 3 and 5 (one-third the midterm doubled under the three strikes law), plus one year consecutive for the prison prior.^[4]

Flores appealed, contending the trial court violated his rights to due process and a fair trial by erroneously granting the prosecutor's motion to consolidate two cases, his convictions must be reversed because the court allowed the prosecutor to elicit inflammatory and irrelevant testimony at trial, his convictions for the lesser included

offenses in counts 1 and 5 must be stricken, and the imposition of the upper term for count 1 violated his federal constitutional rights to proof beyond a reasonable doubt and a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and United States v. Booker (2005) 543 U.S. 220 (Booker). In making the latter assertion, Flores recognized that our Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I) had rejected this same sentencing claim.

Subsequent to the filing of his opening brief, the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) determined that California's determinate sentencing law (DSL) as interpreted in Black I, supra, 35 Cal.4th 1238, which permits a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt, is unconstitutional and violates the holdings in Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Booker, supra, 543 U.S. 220. We asked the parties for supplemental briefing on the effect of Cunningham on the trial court's imposition of an upper term sentence in this case, on whether the issue is waived and what the appropriate disposition of this case would be if the issue is not waived and the sentence is invalid.

After receiving the requested briefing, we asked for additional letter briefs regarding the effect on the upper term sentence of two recent opinions of our Supreme Court, People v. Black (2007) 41 Cal.4th 799 (Black II), in which it reconsidered its holding in Black I in light of the decision in Cunningham, supra, 127 S.Ct. 856, and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), in which it addressed other Cunningham issues pertinent to this appeal. We also sought additional briefing on whether the multiple consecutive terms imposed for the firearm offenses based on the January 16, 2005 incident constituted an unauthorized sentence under section 654.

After review of all briefing, the record and the law, we modify the judgment to strike the counts 1 and 5 lesser included offense convictions, stay under section 654 the term for the count 2 offense, and affirm Flores's convictions and sentence in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Flores was arrested March 21, 2005, and charged in two separate complaints for charges arising from evading police officers with reckless driving on January 16 and February 14, 2005, respectively. After the trial court granted the prosecutor's motion for joinder of the two cases, the matter proceeded to jury trial. Because Flores does not challenge the sufficiency of the evidence to support his convictions, we merely set forth the evidence presented at trial as to each incident for purposes of our discussion of Flores's contentions on appeal.

The January 16, 2005 Incident

Just after midnight on January 16, 2005, as National City Police Officer Leiderson Zeferino pulled behind a white Honda Accord stopped at a light at an intersection in National City, the driver of the Honda, who appeared to be a male with short hair or a shaved head, accelerated through the red light. Zeferino activated his siren and red and blue lights and gave chase, advising dispatch he was pursuing the Honda. The lone occupant of the Honda led Zeferino on a six-mile high-speed chase during which he ran at least 10 stop signs, violated the speed limit in residential neighborhoods, failed to yield for cross-traffic and narrowly missed a pedestrian crossing one intersection.

Although Zeferino lost sight of the Honda when it entered an alley, another National City police officer on patrol, Michael Clement, found the Honda abandoned at 40th and Hemlock in San Diego shortly after hearing the pursuit broadcast that Zeferino had lost the car. When found, the Honda's engine was running and its keys were in the ignition. In a search of the Honda, Clement found Flores's California identification card on the floorboard of the driver's side of the car and a loaded revolver between the driver's seat and the door.^[5]

The subsequent investigation revealed that the primary driver of the Honda, Gina Alonzo (aka Gina Ambriz), knew Flores by the nickname of "Silent,"^[6]who had been to her home several times with a friend of hers and also with her cousin, Melissa Gomez. Alonzo did not remember whether Flores had ever been in her car, and she had not given him permission to drive it on the night of January 14, 2005. Alonzo discovered the Honda missing from her driveway the next morning and subsequently filed a police report on it being stolen. Alonzo did not own a revolver.

Forensic testing revealed a fingerprint belonging to Flores on the exterior of the driver's door of the car. No prints were recovered from the revolver.

The February 14, 2005 Incident

Around midnight on February 14, 2005, as San Diego Police Officer John Howard, on patrol with his partner in Sherman Heights, was investigating a complaint of vehicle vandalism, Howard observed a black Lincoln Town car parked on 27th Street and Market Street with its engine running and decided to investigate. As Howard drove by the car, he shined his spotlight on its inside compartment to view the two male occupants, making eye contact with the driver who was Hispanic and wearing a beanie or old navy watch cap. When Howard then made a U-turn and pulled up behind the Lincoln, the driver took off down Market Street at a high rate of speed. Howard activated his lights and siren and pursued the Lincoln, which continued to speed, run stop signs and lights as it led the officers on a 5.9 mile high-speed pursuit through city streets and local highways.

When Howard's brakes began to fail, San Diego Police Officer Cesar Castro took over the lead in pursuing the Lincoln. He followed the Lincoln as it ran several more lights and stop signs and then onto the freeway where it crashed just past the Ocean View exit on Interstate 15. After seeing two men leave the car and run across the freeway, Castro saw a woman, who came out the driver's side door of the Lincoln, run past the center median of the freeway where she was hit by oncoming traffic. Hearing her screams for help, Castro dragged the severely injured woman out of the traffic lanes. Howard and his partner arrived on the scene to see the two males running across the traffic lanes. Howard stayed with Castro and the injured woman while Howard's partner ran, without success, after the men. Howard was certain that Flores was the driver of the Lincoln.^[7]

California Highway Patrol Officer Eric Nicholas arrived at the scene of the accident and began an investigation. Based on the tire marks in the area, Nicholas opined that the Lincoln had driven across the median and hit the exit sign before careening out of control and striking the center divider wall as it came to rest on the freeway. Because the driver's seat was pushed back, Nicholas assumed the driver of the Lincoln was relatively tall. A latent fingerprint lifted from the fuel door of the Lincoln matched Flores's right index finger.

Several hours later, Nicholas spoke with 17-year-old Gomez, the woman who had been injured and taken to a hospital. Gomez was generally evasive and uncooperative when questioned about the accident, but did tell Nicholas, "Gabe was driving, okay?" When Nicholas spoke with Gomez at the hospital several weeks later, she refused to look at a photo lineup admonishment card and quickly looked away when shown a photo lineup, refusing to answer whether she recognized anyone. Gomez told Nicholas that she had met two guys at the Chula Vista mall a half hour before the accident and had agreed to go with them even though she had never seen them before and did not know their names. The patient sharing the room with Gomez identified Flores in the photo lineup as an extremely nervous man whom she had seen visiting Gomez.

Gomez's mother testified that Gomez had been getting regular telephone calls from a man named "Gabriel" in early 2005. When she visited Gomez in the hospital after the accident, she asked her if she had been with Gabriel, but Gomez would not answer her, saying, "Mom, you know already. Why do I have to answer it?" Gomez's mother later looked in Gomez's bedroom at home and found a strip of photographs showing Gomez with a man whom her mother assumed was Gabriel. Gomez's mother turned the photographs over to the police.

Gomez's mother continued to visit Gomez, who remained in the hospital for over three months during which time she had 17 to 22 surgeries and a rod placed in her left leg to prevent her from losing it. On the evening of March 21, 2005, when Gomez's mother, along with her husband and son, paid a surprise visit to Gomez at the hospital, they found Flores, the man Gomez's mother knew as Gabriel from the strip photographs, lying next to Gomez on her hospital bed. When Flores tried to run from the room, Gomez's mother and other family members subdued and detained him even though he had reached for a knife in his pocket. Gomez's mother called hospital security and asked that the CHP be contacted "because [she] knew they were looking for him." Flores was wearing a necklace with the name "Melissa" (Gomez's first name) on it when he was taken into custody.

Gomez's brother, who had been living at the family home with Gomez and their mother, identified Flores as Gomez's boyfriend in January 2005, whom he described as a tall Hispanic male in his 30's who drove a black Lincoln Town car when he picked up Gomez at the house.

Gomez reluctantly testified in the prosecution case. She identified Flores as a man she knew by the name "Ralph" and denied that she ever referred to him as Gabriel or Gabe. She had met Flores though friends and her cousin Alonzo in December 2004. Although he had called her almost every day in the beginning of 2005, and they had gone to the movies in the Lincoln and had kissed, Gomez was unable to "really say" that Flores was her boyfriend. Gomez would not answer questions as to whether she had been intimate with Flores, saying, "Oh, I don't know" and "it's personal."

With regard to the driving incident and accident, Gomez claimed that after smoking some methamphetamine at home she had a friend drop her off at a party at her cousin's house near Logan Heights where she ran into Flores who was drunk and not paying attention to her. Gomez borrowed the keys to the Lincoln, telling Flores she needed to get something from the car, and instead, to make Flores mad, left in the Lincoln with two bald-headed Hispanic men who were outside the house. The taller of the two men, whom Gomez did not know, drove and agreed to take her home to National City. She fell asleep as he drove around, but awoke when she heard sirens and saw flashing lights and realized they were being chased by the police. When the driver hit a freeway sign and crashed into the center divider, Gomez got out of the car to run after the two men but was hit trying to cross the freeway. Someone dragged her to safety and she was taken to the hospital.

Gomez could only remember parts of what happened at the hospital because she was on medication. She denied telling CHP Officer Nicholas that Flores had been driving the Lincoln when it crashed, did not recall rooming with the woman who identified Flores as visiting her at the hospital, and did not identify Flores in the photographic lineup. Although she had received letters from Flores since he was taken into custody, Gomez denied he had told her what to say in court.

After the court advised the jury that it was going to permit some questions for the limited purposes of credibility, which were not directly related to the charges, Gomez denied that she had any feelings left for Flores at the time of trial. Although Gomez had learned that she was pregnant at the time she was hit by the car after the Lincoln crashed, she denied she lost the baby at that time.

On cross-examination, Gomez testified that she and Flores had gone with her cousin Alonzo in the Honda to a casino in December 2004. Gomez also claimed she had a boyfriend in custody at George Bailey and that she had lost her baby due to treatment for her leg.

As to both evading incidents, the parties stipulated that Flores had been convicted of a prior felony on February 10, 1995 in a San Diego Superior Court case.

Defense Case

Flores presented an expert in his defense, who testified on the process of acquiring information affecting eyewitness identification and explaining pertinent factors that affect the accuracy in such identification. The expert also discussed the problems with photographic lineups and opined the one used in this case did not fairly match up with Flores's photo with others so that his photo would more probably be picked out as the suspect.

DISCUSSION

I

CONSOLIDATION OF CASES

Pretrial, the prosecutor moved to consolidate Flores's two cases charging him with evading an officer. The prosecutor described the two incidents as above, noting they were the same class of offenses as required under section 954, and represented that the incidents had several factors in common, including the time of the crimes and similar patterns; i.e., they both started from minor contact by police in the middle of the night and escalated into full-blown pursuits where Flores had run through numerous stop signs and lights and in the end had abandoned the vehicles, fleeing on foot. Flores also had a prior conviction for felony evasion from police which the prosecutor intended to introduce in each case under Evidence Code section 1101, subdivision (b). The prosecutor also had fingerprint evidence from that prior, which it intended to use with the fingerprint evidence in each case.

Flores objected to the cases being joined, arguing that consolidation would be prejudicial because the prosecutor was attempting to bolster a no identification case with a weak identification case.^[8] The trial court granted the motion to join the two cases, noting each case involved similar charges of section 2800.2 and "they happened to have occurred within a very short period of time of each other." The court additionally commented that the "reasons stated in the People's moving papers [are] compelling in terms of the substantial savings to the justice system to have both of these cases tried at once."

On appeal, Flores contends the trial court's ruling consolidating the two evading cases resulted in a denial of his right to due process and a fair trial. We disagree. Generally, the denial of a severance motion or the grant of a consolidation motion is reviewed for abuse of discretion. (People v. Osband (1996) 13 Cal.4th 622, 666.) "A court abuses its discretion when its ruling 'falls outside the bounds of reason.' " (Ibid.) We find the court's ruling on the motion to consolidate was reasonable.

The law prefers the consolidation of charges. (People v. Ochoa (2001) 26 Cal.4th 398, 423.) Under section 954, "[a]n accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately . . . ." "Offenses committed at different times and places against different victims are, nevertheless, 'connected together in their commission' when there is a 'common element of substantial importance' among them. [Citations.]" (People v. Matson (1974) 13 Cal.3d 35, 39.)

The joinder of such related charges, " 'whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 409.)

Here, the major counts in each case, counts 1 and 5, involved evading an officer with reckless driving and were thus clearly of the same class under section 954. (See People v. Sapp (2003) 31 Cal.4th 240, 257.) Also, the other counts were generally related to those incidents which occurred within a short period of time, as the trial court found, and included the enhancing fact that Flores had previously been convicted of a felony evading which would be admissible in each case. Joinder of such counts under section 954 was therefore appropriate and preferred unless Flores could make "a clear showing of potential prejudice" due to the consolidation of such properly joined counts. (People v. Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford).) Flores failed to do so.

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

These criteria, however, are not "equally significant." (Bradford, supra, 15 Cal.4th at p. 1315.) " '[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible . . . in separate trials on the others.[^[9]] If so, any inference of prejudice is dispelled.' [Citations.] Cross-admissibility suffices to negate prejudice, but is not essential for that purpose. Although ' "we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice." ' [Citation.]" (Id. at pp. 1315-1316; fn. added.) However, when the offenses share a number of common marks having a substantial degree of distinctiveness, this factor weighs in favor of joinder. (People v. Sully (1991) 53 Cal.3d 1195, 1222-1223.)

"[T]he propriety of a ruling on a motion to sever counts is judged by the information available to the court at the time the motion is heard." (People v. Cummings (1993) 4 Cal.4th 1233, 1284.) In this case, the prosecutor originally argued the two evading police officer offenses shared the common marks that each occurred around the same time, in the middle of the night, less than a month apart, after Flores noticed the police officers and took off in vehicles leading the police in similar high-speed pursuits of about six miles, running lights and stop signs, before each vehicle was abandoned and Flores left the scene on foot. The prosecutor also noted that evidence concerning Flores's prior felony of evading a police officer would be admissible in each case. Because the evidence of the current evading crimes was substantially similar, the court could have found the circumstances of each of the crimes was cross-admissible on the issue of identity in each case as well as on the issue of intent in committing each crime. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Evidence concerning the prior felony conviction and Flores's known fingerprints was also cross-admissible. Because the bulk of the evidence was cross-admissible, Flores could not show he was likely to suffer any prejudice. (See People v. Jenkins (2000) 22 Cal.4th 900, 947.) Therefore, we conclude that on the information before the court at the time of its ruling, it was well within its discretion in granting the prosecutor's opposed consolidation motion.

Although we find no abuse of discretion, "[b]ecause the issue is raised on appeal following trial [and Flores asserts he was denied a fair trial by the grant of the consolidation motion], we must also consider whether, 'despite the correctness of the trial court's ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law.' [Citation.]" (People v. Sandoval, supra, 4 Cal.4th at p. 174.) Flores's bald assertion of gross unfairness caused by the joining of a relatively weak case of no positive identity in the January incident of evading (count 1) with a somewhat stronger case of questionable positive identity in the February evading incident (count 5), however, is unsupported by this record. Rather, it is based solely on Flores's view that the February incident was more inflammatory due to the fact that Gomez was involved and evidence was presented concerning her relationship with him and the fact she suffered severe injuries after the evading crash. Flores's position is skewed. It not only ignores the fact that evidence of his relationship with Gomez was intertwined with the January incident because his identification card was found in Gomez's cousin's Honda, and he used the fact he had driven in that car to a casino with Gomez and her cousin as an explanation as to how the identification card had come to be in the Honda, as well as all the evidence concerning his arrest in Gomez's hospital room, Flores simply has not demonstrated any actual prejudice from an alleged "spillover" effect of count 5, resulting from the joinder of the charges for trial. (Bradford, supra, 15 Cal.4th at p. 1317.) Neither case was more inflammatory or significantly stronger than the other. No due process violation is shown.

II

EVIDENTIARY ERROR

Near the end of the prosecutor's direct examination of Gomez, he asked to go sidebar to discuss several questions he wanted to ask her. The prosecutor had learned from Gomez's medical records and the police report that she was pregnant when she was hit by traffic after the crash and had lost the fetus in the early stages of pregnancy. The prosecutor wanted to ask Gomez whether she was pregnant with Flores's child at that time.

When Flores's counsel objected on "relevance grounds," the prosecutor explained that because Gomez's demeanor was combative to his questioning and sympathetic toward Flores, the fact she was pregnant with his child would show she had an intimate relationship with him and was "a possible reason why she would have an attachment to him and seek to protect him at trial."

The trial court agreed that because Gomez had not been clear as to their relationship, the prosecutor could ask such question for the limited purposes of credibility. When the court then asked whether the prosecutor had any proof if Gomez denied that the baby was Flores's, the prosecutor agreed with Flores's counsel that there was no evidence in the file that indicated the child had been Flores's. Nonetheless, the court told the prosecutor he could ask the question, but reminded him not to go into too much detail.

After the court advised the jury that it was permitting some questions for the limited purpose of credibility, the prosecutor asked whether Gomez had learned she were pregnant at the time she was hit by the car. When she said she did not lose the fetus at that time, the prosecutor had her clarify that she had no child at the time of trial. On cross-examination, Gomez said she lost the fetus during treatment for her leg injuries after the accident. During jury instructions, the court again reminded the jurors as to the limited admissibility of such testimony concerning credibility of a witness.

Flores contends on appeal that his convictions must be reversed because the trial court abused its discretion in allowing the prosecutor to elicit inflammatory and irrelevant testimony about Melissa's pregnancy. Although we find the court abused its discretion in admitting the objected-to evidence, we conclude the error in doing so was harmless on this record.

Generally, a trial court has wide discretion in determining the admissibility of evidence (Peoplev.Lucas (1995) 12 Cal.4th 415, 449), i.e., in deciding whether the evidence is relevant^[10](People v. Carter (2005) 36 Cal.4th 1114, 1166-1167) and whether Evidence Code section 352 precludes its admission (Lucas, supra, 12 Cal.4th at p. 449). A trial court, however, has no discretion to admit irrelevant evidence. (Carter, supra, 36 Cal.4th at pp. 1166-1167.) The trial court's ruling in exercising discretion to admit evidence will not be disturbed on appeal absent an abuse of discretion.

Here, there was absolutely no evidence that Gomez's pregnancy was caused by Flores. After the prosecutor asked for the court's ruling as to whether he could ask Gomez whether Flores was the father of her lost fetus, the question was not asked. Rather, the questions the prosecutor asked regarding the discovery of Gomez's pregnancy and the loss of the fetus provided no nexus to connect Flores with the baby. Absent any showing that Flores was likely the father of Gomez's unborn child, the evidence that she

was pregnant was simply not relevant to show her bias in Flores's favor or credibility as argued by the prosecutor. The trial court therefore abused its discretion in admitting such irrelevant evidence.^[11]

On this record, however, we do not find the evidentiary error prejudicial. The pregnancy evidence was limited in nature and scope, and the trial court admonished the jury before its admission and again before deliberations to only consider it for assessing Gomez's credibility. We presume the jury followed the trial court's instructions and did not use the erroneously admitted evidence in deciding Flores's guilt on the February evading charge. Give the abundant and strong evidence independent of Gomez's testimony that Flores was evading the police by recklessly driving the Lincoln, including the positive identification of Flores as the driver by Officer Howard, the evidence provided by Gomez's family concerning her relationship with Flores, and the fact Gomez was a reluctant witness with an obvious bias in Flores's favor, we cannot find that it is reasonably probable that Flores would have obtained a more favorable outcome had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.) It is unreasonable to infer that any jury, hearing all the testimony, would be swayed in this case to convict Flores based on learning Gomez had been pregnant at the time of the accident. Thus, even assuming the error implicated Flores's federal constitutional rights, it was also harmless under Chapman v. California (1967) 386 U.S. 18, 23-24 (Chapman).)

III

LESSER INCLUDED CONVICTIONS

Flores, contends, and the People concede, that his convictions for the lesser included offenses in counts 1 and 5 must be stricken. Because we agree Flores may not legally remain convicted of both a greater and a lesser included offense (People v. Montoya (2004) 33 Cal.4th 1031, 1034), we strike the lesser offense convictions for counts 1 and 5.

IV

SENTENCING ERRORS

As noted above, Flores originally claimed the trial court violated his federal constitutional rights when it imposed a three-year upper term on count 1 based on facts not found by the jury or admitted by Flores contrary to the holdings in Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Booker, supra, 543 U.S. 220. We requested supplemental briefing several times on the effect of the decisions in Cunningham, supra, 127 S.Ct. 856, Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825 regarding the issue. We also requested briefing on a section 654 problem we discovered while reviewing the sentencing record. We address each issue separately.

A. The Upper Term Sentence

After striking two of Flores's prior strikes, the court heard argument regarding the proper term to impose. The court then noted it agreed with the probation officer's assessment that there were no circumstances in mitigation and at least two circumstances in aggravation "including [California Rules of Court,]^[12]rule 4.421(b)(2), that [Flores's] prior record convictions as an adult are numerous, and . . . also that rule 4.421(b)(5) applies, [because his] prior performance on probation [and parole] was unsatisfactory. . . ." The court found these reasons enough "to set the upper term." The court thereafter imposed a three-year upper term for the count 1 evading conviction and doubled it under the three strikes law.

As mentioned earlier, Flores originally claimed federal constitutional error in the court's imposition of the upper term based on Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Booker, supra, 543 U.S. 220, while recognizing that our Supreme Court's holding in Black I had rejected his claim. When Cunningham, supra, 127 S.Ct. 856 was then decided reversing Black I, supra, 35 Cal.4th 1238, we asked for supplemental briefing on the applicability of Cunningham on the upper term sentence in this case and whether Flores had waived the issue as he had not raised it in the trial court at the time of sentencing.

However, before we could resolve Flores's appeal on the supplemental briefing, our Supreme Court decided Black II, supra, 41 Cal.4th 799, in which it reconsidered its holding in Black I, supra, 35 Cal.4th 1238, in light of the Cunningham, supra, 127 S.Ct. 856 decision, concluding that the existence of "a single aggravating circumstance" renders a defendant eligible for the upper term, thus making the upper term the "statutory maximum" in cases where at least one aggravating fact has been shown in a manner consistent with the requirements of the Sixth Amendment. (Black II, supra, at p. 813.) The court specifically stated that "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black II, supra, at p. 812.)

In a companion case, decided the same day, our Supreme Court in Sandoval, supra, 41 Cal.4th 825, found the defendant's failure to object to the upper term sentence on Sixth Amendment grounds did not constitute a forfeiture of the issue on appeal because the sentencing occurred, as in this case, after Black I, supra, 35 Cal.4th 1238 and before Cunningham, supra, 127 S.Ct. 856, rendering any objection to the upper term sentencing procedure futile. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) The court in Sandoval, however, found that because there were no factors in aggravation that satisfied the Sixth Amendment right to jury established under Blakely, supra, 542 U.S. 296, to make the defendant eligible for the upper term as there had been in Black II, supra, 41 Cal.4th 799, the trial court committed error which must then be analyzed under the Chapman, supra, 386 U.S. 18, "harmless beyond a reasonable doubt standard." (Sandoval, supra, at pp. 837-838.) When the court did so in that case, it found the error prejudicial and set out the procedure for resentencing consistent with the Legislature's March 30, 2007 amendment of section 1170. (Sandoval, supra, at pp. 843-852.)

We requested supplemental briefing again, this time on the effect of Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825, on the upper term sentence in this case. Having reviewed all briefing on the matter, we conclude that as in Sandoval, an objection would have been futile in this case and reject the People's argument that Flores's objection to the imposition of the upper term has been waived. However, in reaching the merits, we conclude that the analysis in Black II is dispositive of that claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Here, as in Black II, the trial court relied on at least one aggravating factor that rendered the defendant "eligible for the upper term sentence." (Black II, supra, 41 Cal.4th at p. 812.) Specifically, the court found the fact that Flores's adult convictions were numerous was a circumstance in aggravation warranting imposition of the upper term. The same aggravating factor was found to be sufficient in Black II to support an upper term eligibility because it falls under the Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres) exception for recidivist factors. (Black II, supra, 41 Cal.4th at p. 819.) In finding this so, the court reasoned:

"The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. . . . 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.)

Because at least one of the aggravating circumstances on which the trial court here relied was shown by means sufficient to satisfy the Sixth Amendment, Flores was eligible for the upper term and the court was fully within its discretion to select the upper term without violating his right to a jury trial. No Blakely/Cunningham error is shown.

B. The Section 654 Problem

After imposing the upper term sentence on count 1, the trial judge imposed a consecutive (1/3 the midterm) sentence of eight months, doubled to 16 months, on the "separate charge" of the count 2 conviction for possession of a firearm by a felon and then imposed the same term for the count 3 conviction of carrying a concealed firearm in a vehicle by a felon. The judge, however, concluded that because the count 3 conviction and the count 4 conviction for carrying a loaded firearm in a vehicle by a felon "are very similar violations, . . . I am only going to impose sentence on one of those two. . . . And the other one will be stayed. [] So I am going to impose under [section] 12025[, subdivision] (a)(1) with the [ex-felon] allegation of [section] 12025[, subdivision] (b)(1). So it's an additional consecutive eight months, doubled because of the strike. That's another 16 months." The abstract of judgment shows that the count 4 conviction was stayed under section 654.^[13]

Section 654 provides in pertinent part: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Generally, even though multiple convictions may be permitted for more than one offense arising out of the same act or course of conduct ( 954), section 654 precludes multiple punishment for the same "act or omission." (People v. Ortega (1998) 19 Cal.4th 686, 692.) In other words, "[s]ection 654 precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. 'Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" (People v. Evers (1992) 10 Cal.App.4th 588, 602.) In such situation, "the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]" (People v. Reed (2006) 38 Cal.4th 1224, 1227.)

Because the crimes in counts 2, 3 and 4 were based on the same firearm found on the driver's side of the abandoned stolen Honda for which Flores was subsequently identified by circumstantial evidence as the driver who evaded the police on January 16, 2005, we asked the parties to submit additional briefing on whether the trial court properly imposed consecutive sentences on counts 2 and 3 while it stayed only the term for count 4.^[14]

Although we are aware that the court in People v. Harrison (1969) 1 Cal.App.3d 115 upheld multiple sentences for convictions of section 12021 and section 12031 on grounds there were multiple intents and objectives between possession and carrying a concealable firearm by a felon and the carrying of a loaded firearm by a person regardless of their status, who either loads that firearm or permits another person to do so, we do not believe the defendant's objective and intent regarding counts 2 and 3 can be distinguished in this case as in Harrison.

As noted above, the evidence merely showed that the revolver found in the abandoned Honda which formed the basis of the three firearm offenses was connected to the admitted ex-felon Flores through his identity as the driver of that vehicle, or the one having control of the Honda which had been stolen at the time of the evading police offense. Each of the firearm charges thus necessarily arose out of the same static act of Flores having the firearm within his reach in the vehicle under his control. As such, his constructive possession of the gun on that date was merely incidental to his carrying the gun in the Honda. Because there is no evidence regarding Flores's possession or ownership of the firearm either before or after its presence in the Honda and no clear evidence of his intent and objective with respect to the firearm, we cannot say Flores harbored more than a single intent or criminal objective when committing the firearm offenses in this case.

The court partially recognized this fact when it stayed the count 4 conviction for carrying a loaded firearm in the Honda. In the factual context of this case, we believe the imposition of a term for more than one of the convictions based upon Flores's single act of possessing and carrying the gun as an ex-felon in the Honda or on his person in the Honda violates section 654's proscription against multiple punishment for the same act or omission. The trial court's imposition of such term was therefore unauthorized.^[15] Accordingly, we stay the term for the count 2 conviction and direct the trial court to amend the abstract of judgment to reflect such modification of Flores's sentence, so that Flores's total prison sentence is now nine years and eight months.^[16]

DISPOSITION

The judgment is modified to strike the lesser included convictions for counts 1 and 5, and to stay the term imposed for count 2 under section 654. The trial court is directed to amend the abstract of judgment accordingly and to forward an amended abstract to the

Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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^[1] The jury also found Flores guilty of the lesser included offense of evading a police officer (Veh. Code,  2800.1, subd. (a)) for both counts 1 and 5.

^[2] All statutory references are to the Penal Code unless otherwise specified.

^[3] The court also found true the bifurcated section 12025, subdivision (b)(1) allegations attendant to counts 3 and 4 that Flores had previously been convicted of reckless evading.

^[4] The court stayed sentence on count 4 under section 654 and imposed a concurrent one-year term for count 6.

^[5] A credit card in the name of Lynn Brennan was also found in the Honda. Although she testified at trial that her purse and credit card had been taken from her while she was shopping in January 2005, she could not identify Flores as the thief, but said he looked similar to the Hispanic male shown in the store surveillance video. No charges had been filed against Flores concerning the theft of Brennan's credit card.

^[6] The parties stipulated that a San Diego Police detective had known Flores for 11 years and that during such time Flores also used the names of Ralph and Silent.

^[7] Although Howard initially told investigating officers he was uncertain whether he would be able to identify the driver, he positively identified Flores's photograph in the photo lineup he was later shown.

^[8] Although it is unclear whether the court considered Flores's opposition papers that were filed the same day as the hearing on the motion, it heard and considered Flores's counsel's same arguments in opposition at the hearing before ruling on the matter.

^[9] Although evidence of other crimes is not cross-admissible to establish a disposition to commit crimes under Evidence Code section 1101, it is admissible to establish other relevant facts, including intent, motive, knowledge, or identity. (Evid. Code, 1101, subd. (b).)

^[10] Evidence Code section 210 states that: " 'Relevant evidence' means evidence, including evidence relevant to the credibility of the witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."

^[11] Because Flores did not object to the evidence as inflammatory below, he may not raise such ground at this time. (People v. Millwee (1998) 18 Cal.4th 96, 128-129.)

^[12] All rule references are to the California Rules of Court unless otherwise noted.

^[13] The abstract of judgment erroneously reflects that an upper term of six years was imposed and then stayed for count 4 rather than the sentenced orally pronounced. The trial court should correct the abstract of judgment to reflect the actual term pronounced for count 4 when it amends the abstract of judgment according to our directions in this opinion.

^[14] Because a trial court acts in excess of its jurisdiction and imposes an unauthorized sentence if it erroneously fails to stay execution of a term subject to the proscription against multiple punishment, the reviewing court must raise the issue when such possibility is discovered on appeal and correct any error in the applicability of section 654 whether or not the issue has been raised in the trial court or on appeal. (See People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3.)

^[15] The People concede this point in their supplemental briefing.

^[16] It would serve no purpose to remand the matter to the trial court to attempt to make some factual findings on Flores's intent and objection with regard to counts 2 and 3 in light of the absence of any record evidence which could support those findings.