P. v. Jackson

Filed 11/2/07 P. v. Jackson CA4/1

Opinion following remand

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed.

This case is before us for a second time, after transfer from the California Supreme Court for reconsideration in light of that court's recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In our original opinion, we affirmed appellant Amber Jackson's convictions, but vacated her sentence on the ground that the trial court's imposition of the upper term violated Jackson's constitutional rights because the trial court relied on facts that were not found by a jury nor admitted by Jackson to impose the upper term, in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). On reconsideration, we conclude that under the principles announced by the Supreme Court in Black II, the trial court did not err in imposing the upper term sentence on count 2.

I.

INTRODUCTION

Jackson challenges the trial court's judgment of conviction and sentence. Jackson was convicted of aggravated mayhem (Pen. Code,^[1] 205; count 1) and assault by means of force likely to cause great bodily injury ( 245, subd. (a)(1); count 2). The jury also found true the allegation that Jackson personally inflicted great bodily injury in violation of section 12022.7, subdivision (a). The allegations arose from an incident in which Jackson threw scalding oil on her sister, Stephanie.

Jackson raises four arguments on appeal. Jackson first contends that the trial court improperly instructed the jury with regard to defense counsel's reference in opening statements to a remark made by a witness suggesting that Jackson's case was a "three strikes" case. Jackson also maintains that the trial court improperly allowed a paramedic to testify about statements Stephanie made to the paramedic as Stephanie was being transported to the hospital. According to Jackson, the prosecutor failed to disclose to the defense the statements Stephanie made to the paramedic, despite the fact that the prosecutor learned about the statements at least a day before the prosecutor called the paramedic as a witness. Jackson next claims that the trial court abused its discretion in restricting the scope of her cross-examination of Stephanie. Finally, Jackson contends that the trial court erred in sentencing her to the upper terms on count 2, assault, and on a child abduction conviction in a separate case.^[2]

We conclude that the trial court did not err in admonishing the jury with regard to defense counsel's reference to "three strikes;" that the court erred in allowing the prosecutor to elicit testimony about statements that were not disclosed to the defense, but that this error did not prejudice Jackson; and that the trial court did not abuse its discretion in restricting the scope of defense counsel's cross-examination of Stephanie.

We further conclude that the trial court did not violate Jackson's constitutional rights by sentencing her to the upper term for the assault conviction. The trial court relied on at least one constitutionally permissible aggravating factor that rendered Jackson eligible for the upper term. We therefore affirm the judgment of the trial court.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background

On December 6, 2004, Jackson was charged with aggravated mayhem and assault by means of force likely to cause great bodily injury. The information also alleged that (1) Jackson personally inflicted great bodily injury during the commission of the assault, (2) Jackson committed the offense while she was released from custody on her own recognizance pending final judgment on an earlier felony offense, and (3) Jackson had suffered a prior strike conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12.

A jury trial commenced on October 25, 2005. The jury found Jackson guilty on both counts and found true the allegation that Jackson personally inflicted great bodily injury. Jackson admitted that she had suffered a prior strike and that she was out on bail at the time she committed the instant offenses.^[3]

On December 16, 2005, in case No. SCD185923, the trial court sentenced Jackson on count 1 to prison for life with the possibility of parole, plus two years for the enhancement for being on bail at the time of the offense, and to the upper term (four years, stayed) on count 2. In case No. SCD181527, the child abduction case, the court imposed an upper term of eight years (four years, doubled), to run consecutive to the life sentence in case No. SCD185923.

Jackson filed a timely notice of appeal in case No. SCD185923 only, on December 22, 2005.

B. Factual background

1. The prosecution's case

The prosecution contended that Jackson intentionally threw a cup of boiling hot oil on her 15-year-old sister Stephanie on September 27, 2004. Approximately two weeks before this incident, Stephanie and Jackson had had an argument about Jackson wearing Stephanie's jacket without Stephanie's permission. Jackson suggested that the two fight, and a physical altercation ensued. Later, while Stephanie was taking a shower, Jackson stole Stephanie's purse and jacket.

On the day of the hot oil incident, Stephanie was in her bedroom when Jackson approached Stephanie and said, "You have a pretty face, but beauty doesn't last forever." Stephanie was not particularly concerned about that comment, because she and Jackson "weren't getting along anyway."

Jackson later knocked on the door to Stephanie's bedroom. When Stephanie opened the door, she saw Jackson holding a cup of hot oil. Jackson said, "I'll give you a chance to apologize for stealing my weed." Stephanie replied, "I'm not apologizing to you." Jackson then threw the hot oil on Stephanie. Stephanie turned away, and the oil splashed on the left side of her body.

After Jackson threw the oil on Stephanie, Jackson ran out the front door of the house. Teresa, a friend of Stephanie's, and Alex, one of Jackson and Stephanie's sisters, came to help Stephanie. Stephanie took off her clothes and jumped into the shower to try to get the oil off of her. When Stephanie got out of the shower, she put on a t-shirt and wrapped herself in a towel.

Earlier that day, while Teresa was at Jackson and Stephanie's home, Teresa heard Jackson tell Stephanie that Stephanie's face was pretty, but that prettiness doesn't last forever. At some point, Teresa decided to go to the store. As Teresa was leaving the Jackson residence to go to the store, she saw Jackson in the kitchen cooking with hot oil. Teresa then left for the store. When she returned approximately five or 10 minutes later, Teresa heard Stephanie screaming and saw Jackson leaving the apartment, walking fast. Teresa went into Stephanie's bedroom and saw oil "everywhere in the room." Stephanie was crying and screaming, and Teresa could see that Stephanie's skin was bubbling. Teresa called for Stephanie's sisters, Alex and Olivia.

Earlier, Olivia had seen Jackson heating up a pan of oil. Olivia then went to take a shower. While she was in the shower, she heard screams and crashes. After Olivia got out of the shower, Alex told her that Jackson had thrown hot oil on Stephanie. Olivia saw Stephanie screaming and crying, and trying frantically to get the oil off of her skin. Olivia called 911.

Approximately 10 minutes later, an ambulance arrived. Olivia rode with Stephanie in the ambulance to the hospital. Stephanie was upset and appeared to be in pain. A paramedic gave Stephanie morphine for the pain.

When Stephanie arrived at the hospital, she was placed in a room for treatment and was later admitted to the hospital. The next day, police officers came into Stephanie's hospital room to question her and Olivia, and to take pictures of Stephanie's burns. Stephanie suffered burns over about seven percent of her body. Most of the burns were deep, second-degree burns. Hospital personnel continued to administer pain medication to Stephanie. After approximately a week in the hospital, Stephanie underwent skin graft surgery. Stephanie sustained permanent scars from her burns.

2. The defense

Jackson's defense was that she had accidentally spilled the hot oil on Stephanie when Stephanie grabbed Jackson while Jackson was holding the cup of hot oil. According to Jackson, the hot oil had begun to melt the cup and started to burn her finger, and that is when she accidentally spilled the oil on Stephanie. Jackson said that she had intended to throw the oil out of the window in Stephanie's room, into a trash pile. Jackson claimed that she never intended to maim or disfigure her sister.

Jackson also challenged the credibility of other witnesses. For instance, in an attempt to impeach Teresa, Jackson pointed out that Teresa never told police that she had heard Jackson make the "prettiness doesn't last forever" comment to Stephanie.

III.

DISCUSSION

A. The three strikes issue

1. Background

During his opening statement, Jackson's attorney told the jury three times that Stephanie had said, referring to Jackson, "I want to kill her. I want her dead. I want her in jail for the rest of her life. This will be her third strike. I want her gone forever." The People did not object to these statements. A conviction on the charged offense would not have been Jackson's third strike.

Later that day, the trial court discussed the references to a third strike that defense counsel had made during his opening statement. The People argued that the jury should be instructed that a conviction in this case would not constitute a third strike for Jackson. Jackson's attorney took the position that if the court were to instruct the jury that this case was not a third strike case, this instruction would contradict the instruction that the jury is not to consider the potential punishment for the crime. Defense counsel further asserted that instructing the jury that the case was not a third strike case would be misleading in the sense that although the case did not involve a third strike, which the jury could presume would involve a lengthy sentence, Jackson was nevertheless facing a mandatory life sentence for aggravated mayhem. Defense counsel was concerned that the jury would erroneously infer from the court's proposed instruction that Jackson was not facing severe punishment because she was not facing a third strike, and that the jury would thus be more inclined to convict.

After hearing counsel's arguments, the court admonished the jury that, "Remarks in opening statement[s] referenced a third strike. This is not a third strike case," and also instructed the jury with CALJIC No. 17.42.^[4] Defense counsel and the prosecutor ultimately agreed to the wording of the trial court's admonition.

On October 27, 2005, during a discussion concerning jury instructions, Jackson's attorney asked the court to further admonish the jury with the statement: "The issue of whether this case qualifies as a third strike, one strike, or no strike is not for the jury to decide." The following colloquy then occurred:

"The Court: That's what you want me to give?

"Mr. Funk: Yes, Your Honor, that's because of what happened

in the opening statement and the court's actual

instruction.

"The Court: Which counsel stipulated to.

"Mr. Funk: I did, but upon further reflection, I think it tips the

balance unfairly toward the People.

"The Court: Okay. All right. So you want me to state when I

read 17.42, 'The issue of whether this case is a'

should say 'qualifies as a third strike, one strike, or

no strike is not for the jury to decide.' And Ms.

Santana?

"Ms. Santana: Your Honor, I oppose. We covered that already.

We already read the instruction and we took care of

it. The only reason this became a problem is

because counsel's statement at opening left the

inference this was a third-strike case, which was

improper. [] Other than that, the jury is not to

speculate. That's why they are told, 'You are

not to speculate. And the punishment is not up to

you to decide.' So that's more than sufficient. []

If we start highlighting, it is almost like saying,

'Wink, wink, it is.' And I don't think that's proper.

And it is not fair that be done. I think that's why

we have that jury instruction. . . ."

After considering the issue, the court concluded that the prior admonition, in conjunction with CALJIC No. 17.42, had been proper, and that it was sufficient to cure any harm:

"So based on all that and the Court's previous admonitionit was given on Tuesday, October 25th, in the afternoon. And that admonition is, I quote, 'This morning there were remarks in the opening statement reference to a third strike. This is not a third strike case. There was a jury instruction which I'll read to you at this point in time. It's called CALJIC 17.42. '"A jury must not consider penalty in a non-capital case and in deliberation do not discuss or consider the subject of penalty or punishment. That subject must not in any way affect your verdict."' [] That instruction was given. Counsel both agreed to it. And I consider the issue to have been resolved. And I'll deny the request for asubsequent request for an additional instruction based on that."

The trial court did not instruct the jury further regarding the three strikes issue.

2. Analysis

Jackson contends that the trial court erred in instructing the jurors that they were not deciding a "three strikes case." According to Jackson, the court's instruction suggested to the jury that the potential punishment for the crimes charged was not severe, when in fact Jackson was facing a sentence of life in prison if convicted.

The People assert that Jackson should be "barred from asserting error" in this regard because it was defense counsel who initially raised the issue of strikes in front of the jury, and also because defense counsel affirmatively agreed to the admonition the court gave. Jackson responds that her trial counsel objected to the court's admonition, and that the record suggests that although defense counsel eventually did acquiesce to the trial court's admonition, that acquiescence came only after lengthy discussion of the issue during which defense counsel voiced his objections. Regardless of whether Jackson invited the alleged error^[5]or waived her right to challenge the error, we conclude that there is no merit to her argument.

Jackson contends that by admonishing the jury that "this case is not a third strike case," the trial judge implied that Jackson was not facing a life sentence, when she was in fact facing a life sentence. Jackson also contends that by telling the jury that the case was "not a third strike case," the court directly contradicted its instruction to the jury that it was not to consider punishment at all.

The combined instructions to the juryi.e. that the case was "not a third strike case" together with the instruction that the jury was not to consider penalty or punishment in reaching a verdictwere accurate statements of the law. It was within the trial court's discretion to inform the jury that this was not a third strike case, to correct any misimpression the jury may have had as a result of the remarks defense counsel made during his opening statement. Further, the instruction did not necessarily weigh only in the prosecution's favor, as Jackson suggests. It is possible that upon learning that the case was not a three strikes case, the jury could have viewed Jackson in a more favorable light than it might have if the court had not given the corrective instructions. The court's instructions did not unfairly prejudice Jackson.

Jackson also argues that the court erred in failing to instruct the jury again, at the end of the trial, regarding the three strikes issue. During discussions regarding jury instructions, defense counsel requested that the court instruct the jury as follows: "The issue of whether this case qualifies as a third strike, one strike, or no strike is not for the jury to decide." The court declined to raise the issue of three strikes again with the jury. This was not error. The court had previously instructed and admonished the jury on that point, and was not required to give another instruction on a matter it had addressed earlier. (See People v. Smith (2003) 30 Cal.4th 581, 638 [court's refusal to give instruction was proper because prior instructions "fully explained the applicable law"].) The trial court's earlier admonition properly cured any potential misperception the jury may have had.

B. The admission of the paramedic's testimony about Stephanie's statements

was error, but did not unfairly prejudice Jackson

1. Background

On October 25, during the People's case-in-chief, the prosecutor called as a witness Kimberly Rose, a paramedic who assisted in transporting Stephanie to the hospital after the hot oil incident. During direct examination of Rose, the prosecutor asked Rose what Stephanie had said to Rose about what had occurred that day. Defense counsel objected to this inquiry on the ground that the prosecution had provided no discovery regarding any statements Stephanie made to Rose, and that use of such statements at trial would thus violate Jackson's due process rights. The prosecutor responded that she had learned that Stephanie made statements to Rose only the day before Rose was called to testify, and that the information was not contained in any report because paramedics do not create the same kind of reports that police officers do.^[6]

Defense counsel informed the court that he had asked the prosecutor whether Rose was going to testify about any statements Stephanie had made, and that the prosecutor told him there would be no such testimony. The prosecutor denied having been asked "if there was [sic] any statements being made." The trial court overruled the objection, stating, "She's not a police officer, she's a firefighter/paramedic, and counsel has represented there's no report generated, so she's testifying from her recollection. You can cross-examine her, so the objection is overruled."

In response to the question whether Stephanie had said anything to Rose, Rose testified that Stephanie "said that her sister said something on the level of: You aren't going to have a pretty face anymore, and threw oil on her." Rose said that although she had not memorialized Stephanie's statement in her report,^[7]she remembered what Stephanie had said because Rose's brother was a burn victim, and Rose was extremely passionate about burn cases. On cross-examination, Rose indicated that she had discussed with the prosecutor her recollection of what Stephanie had told her sometime during the prior week.

On October 27, 2005, defense counsel filed a motion for a mistrial, or, in the alternative, to strike Rose's testimony regarding Stephanie's statement. Counsel argued that a mistrial was required because Jackson's defense was that Stephanie had fabricated her story about Jackson saying that "beauty doesn't last," after the incident, and after Stephanie had had time to reflect. Counsel argued that Rose's testimony concerning the statement Stephanie allegedly made to Rose in the ambulance immediately after the incident was thus extremely prejudicial to Jackson's defense. Jackson's counsel maintained that the prosecution's failure to inform defense counsel of the statement prior to eliciting it from Rose, and the trial court's denial of Jackson's request for a continuance at the time the testimony was elicited, violated Jackson's right to due process and required a mistrial. The trial court denied the motion for a mistrial and also denied the request to strike Rose's testimony about what Stephanie had said.

2. Analysis

Jackson contends that the trial court erred in refusing to grant her motion for a mistrial, and that the court also erred in denying her requests for a continuance and to strike Rose's testimony regarding what Stephanie said to Rose while Stephanie was being transported to the hospital after the incident. According to Jackson, the prosecutor failed to disclose the statement Stephanie made to Rose before Rose took the stand to testify at trial, despite the fact that the prosecutor knew about the statement at least the day before Rose testified, and possibly up to a week prior to Rose's testimony.

Although the People assert in a single sentence that there was "no discovery violation," the majority of the People's argument focuses on whether Jackson suffered any prejudice as a result of a possible violation.

The prosecutor clearly had a duty disclose Rose's relevant statements to the defense immediately upon learning of the statements. The failure to do so constitutes a discovery violation.^[8] However, the trial court's admission of Rose's testimony regarding what Stephanie said while she was being transported to the hospital did not unfairly prejudice Jackson.

The standard for determining prejudice as to a claim that evidence was erroneously admitted is that articulated in People v. Watson (1956) 46 Cal.2d 818, i.e., whether it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Champion (1995) 9 Cal.4th 879, 919, disapproved of on other grounds in People v. Ray (1996) 13 Cal.4th 313, 369, fn.  2 (conc. opn. of George, C.J.).) This same standard applies when the error complained of is the admission of evidence that was not disclosed to the defense: "[T]o prevail on a contention made on appeal from a judgment of conviction on the grounds of violation of the pretrial discovery right of a defendant, the defendant must establish that '"there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different."' [Citations.]" (People v. Bohannon (2000) 82 Cal.App.4th 798, 806-807.)

Jackson contends that the admission of Rose's testimony was particularly harmful to her defense because Jackson's attorney told the jury during his opening statement that the evidence would show that Stephanie had not told anyone about the "pretty face" comment at or near the time she claims Jackson made the remark, but rather, that she

mentioned the remark only after she had been treated at the hospital. Jackson's defense was that Stephanie had fabricated the statement after she had had time to reflect, because she wanted Jackson to receive a life sentence. Jackson complains that Rose's testimony constituted an unfair surprise because it completely undermined Jackson's theory of the case. According to Jackson, Rose's testimony on this subject "was the primary, and in essence, the only real evidence that appellant had the specific intent to maim or disfigure Stephanie . . . ."

Contrary to Jackson's assertions, Rose was not the only witness who testified about the "pretty face" comment Jackson made to Stephanie earlier on the day of the incident. She thus did not provide "the only real evidence that [Jackson] had the specific intent to maim or disfigure Stephanie." Teresa independently testified that on the day of the incident, before Jackson threw the hot oil on Stephanie, she heard Jackson tell Stephanie "that Stephanie's face was pretty, but prettiness doesn't last forever." This testimony corroborated what Stephanie said to Rose in the ambulance, and was also consistent with what Stephanie told two police officers the day after the incident, which was the first time she was interviewed.

In light of Teresa's testimony and the testimony establishing that Stephanie told two police officers about Jackson's comment the day after the incident, it is not reasonably probable that the result of the proceedings would have been different if the prosecutor had disclosed to the defense Rose's statement concerning what Stephanie said on the way to the hospital, prior to Rose being called as a witness.

C. The court did notabuse its discretion when it restricted the scope of Jackson's

cross-examination of Stephanie

1. Background

On October 31, 2005, Jackson requested that the trial court allow her to reopen the defense case in order to recall Stephanie. Jackson wanted to cross-examine Stephanie about specific incidents Jackson contended were relevant to establish that Stephanie was not credible. Specifically, Jackson wanted to ask Stephanie about Stephanie's admissions that she had stolen clothes and a ring from another individual in her foster home, an incident in which Stephanie was absent from public school without approval, and an occasion on which Stephanie had lied about having in her possession a razor blade for shaving eyebrows. These incidents were identified in a report written on April 23, 2002 and maintained by San Diego County Department of Health and Human Services in a file on the Jackson family. Jackson's attorney was first notified about the existence of the report on the Friday before Jackson made the motion to reopen her defense. Jackson also sought to question Stephanie about an incident in which Stephanie had lied about playing music on a stereo that was hidden under some steps because she was not supposed to have the stereo turned on.

The trial court denied Jackson's request to reopen her defense and cross-examine Stephanie about these incidents. The court concluded that the information was collateral and not sufficiently relevant, and that it should be excluded pursuant to Evidence Code section 352.

2. Analysis

Jackson contends that the trial court improperly limited her ability to cross-examine Stephanie regarding issues that pertained to Stephanie's credibility.

"In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal in the absence of an abuse of that discretion. [Citations.] This discretion is not, however, unlimited, especially when its exercise hampers the ability of the defense to present evidence. While the trial judge has broad discretion to control the ultimate scope of cross-examination, wide latitude should be given to cross-examination designed to test the credibility of a prosecution witness in a criminal case. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 771, 816 (Cooper).)

Although exposing a witness's motivation is an important part of the right of cross-examination, the Confrontation Clause of the Sixth Amendment does not prevent a trial court from imposing some limits on defense counsel's inquiry into a witness's potential bias. (Cooper, supra, 53 Cal.3d at pp. 816-817.) "Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 946.) Under these standards, we conclude that the trial court did not err in denying Jackson's request to reopen the defense case to allow further cross-examination of Stephanie.

The trial court concluded that the incidents about which defense counsel wanted to question Stephanie involved collateral issues, and that to the extent any of the issues were relevant, the testimony would be cumulative to testimony defense counsel had already elicited from Stephanie on cross-examination. The court stated,

"I'll deny the motion. It's cumulative. It's collateral. You've had an adequate chance to attempt to impeach the complaining witness. I already gave you wide latitude. She admitted on the stand that she had lied before. So you've had an adequate opportunity to present the criteria under believability of a witness to the jury panel. And I gave you latitude to go into the prior events that Ms. Santana strongly argued were not relativeor not relevant."

The trial court was reasonable in concluding that the proffered subjects of cross-examination were not relevant to the question of Jackson's guilt or to Stephanie's veracity about what had occurred on the day of the incident, and that the proposed cross-examination would be cumulative to testimony the defense had already elicited from Stephanie. Stephanie had acknowledged during her testimony that she had lied in the past, and admitted to having lied to a nurse so that she could leave the hospital without being discharged. The jury was also aware of the fact that Stephanie had been in foster care, and that she had run away without permission because she did not like the rules she had to follow in foster care. Defense counsel had cross-examined Stephanie about these incidents. Because these issues had been raised and addressed, the specifics of the additional incidents about which defense counsel proposed to cross-examine Stephanie were, at best, only minimally relevant to the issue of whether Stephanie's testimony was credible.

Further, Jackson has not shown that "the prohibited cross-examination would have produced 'a significantly different impression of [the witness's] credibility.' [Citation]" (People v. Frye, supra, 18 Cal.4th at p. 946.) Stephanie had admitted that she had been dishonest in the past, and at least one other witness corroborated Stephanie's testimony about Jackson having made the "pretty face" comment. The facts concerning additional incidents of Stephanie's past dishonest behavior would have added little, if anything, to the jury's impression of Stephanie's credibility. The trial court's exercise of its discretion in denying Jackson's request to reopen the defense case to cross-examine Stephanie about these minor incidents did not violate the Sixth Amendment. (Ibid.)

D. The trial court did not err in imposing the upper termfor the assault

conviction

Jackson contends that the trial court committed Blakely^[9]error in sentencing her to the upper term for her conviction for assault because the factors on which the court relied to impose the upper term were neither proved to a jury nor admitted by Jackson. After reconsidering the matter in light of Black II, supra, 41 Cal.4th 799, we conclude that the trial court did not err in imposing the upper term.

1. Additional background

The court imposed the upper term of four years (stayed) on count 2 in the current case. With respect to factors in aggravation and mitigation, the court's only comment was that it was incorporating the evaluation the probation officer had prepared in assessing the factors in aggravation and mitigation to determine Jackson's sentence on count 2. The probation report listed three factors in aggravation: (1) that the crime involved great violence and a high degree of cruelty and viciousness; (2) that the crime involved planning, in that Jackson boiled the oil before she threw it on Stephanie; and (3) that Jackson "has engaged in violent conduct, which indicated a serious danger to society," in that there was a prior true finding that she had attacked her father, and she had been convicted of abducting her child, whom she had endangered by refusing to provide the child with the prescription formula he needed. The probation officer's report listed the fact that Jackson's "prior performance on juvenile probation was satisfactory" as a possible circumstance in mitigation.

2. Analysis

a. Jackson has not forfeited her claim of error

The Attorney General asserts that Jackson has forfeited her claim by failing to "object under Apprendi, Blakely, or the right to a jury trial." Although defense counsel did not raise a Blakely objection at sentencing, we conclude that Jackson is not precluded from asserting this argument on appeal because any such objection would have been futile. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4 ["An objection in the trial court is not required if it would have been futile"].) Prior to Jackson's sentencing, in People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court analyzed Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296,and United States v. Booker (2005) 543 U.S. 220 and concluded that the imposition of an upper term sentence under California law was constitutional. (Black I, supra, 35 Cal.4th at pp. 1244, 1254, 1261.) Therefore, "[h]ad [Jackson] requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow [the] decision in Black I and deny the request." (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)

b. A single permissible aggravating circumstance renders the

upper term the "statutory maximum"

After the parties had briefed the sentencing issue on appeal, the United States Supreme Court issued its opinion in Cunningham, supra, 127 S.Ct. 856, in which the court addressed the constitutionality of California's determinate sentencing law (DSL) as interpreted by the California Supreme Court in Black I, supra, 35 Cal.4th 1238. In Black I, the Supreme Court determined that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Black I, supra, 35 Cal.4th at p. 1244.) The United States Supreme Court rejected the conclusion in Black I and held that the imposition of an upper term sentence under California's determinate sentencing law, based on neither a prior conviction nor facts found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United States Constitution:

"California's determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term' sentence. The facts so found are neither inherent in the jury's verdict nor embraced by the defendant's plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does." (Cunningham, supra, 127 S.Ct. at p. 860.)

The Cunningham court reasoned:

"As this Court's decisions instruct, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556 (2002) [Ring]; Blakely [, supra,] 542 U.S. 296; United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005). '[T]he relevant "statutory maximum, "'this Court has clarified, 'is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.' Blakely, 542 U.S., at 303-304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham, supra, 127 S.Ct. at p. 860.)

The Cunningham court reversed the defendant's upper term sentence because "the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial." (Cunningham, supra, 127 S.Ct. at p. 860.)

The California Supreme Court recently reconsidered its holding in Black I in light of the Cunningham decision. (Black II, supra, 41 Cal.4th 799.) In addition to addressing a number of other issues raised by Cunningham, the Black II court concluded that the upper term is the "statutory maximum" in cases in which at least one aggravating factor has been established in a manner consistent with the requirements of the Sixth Amendment, thereby rendering a defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 812.) Because the upper term is the "statutory maximum" when at least one constitutionally permissible factor is present, it is of no consequence that the trial court may have relied on additional impermissible aggravating factors in selecting the upper term sentence. According to the Black II court, "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 [, supra, 530 U.S. 466] and its progeny, any additional fact finding 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, 41 Cal.4th at p. 812 (italics in original).)

c. The trial court relied on at least one aggravating circumstance

that was established in accordance with the requirements of the

Sixth Amendment

In this case, the trial court relied on at least one constitutionally permissible aggravating circumstance that rendered Jackson "eligible for the upper term sentence." (Black II, supra, 41 Cal.4th at pp. 806, 813.) Specifically, the trial court relied on the fact that Jackson "has engaged in violent conduct, which indicated a serious danger to society," as demonstrated, in part, by Jackson's conviction for abducting her child, whom she endangered by refusing to provide him with the prescription formula he needed. As Black II clarifies, a court may use circumstances related to a "defendant's criminal history" to impose the upper term despite the lack of jury findings or admissions as to those matters. (Id. at p. 818.)

The Black II court concluded that factors relating to a defendant's recidivism need not be found by a jury nor admitted by the defendant in order to be established in accordance with Apprendi because these factors fall within the scope of the exception identified in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres). (Black II, supra, 41 Cal.4th at pp. 818-819.) Under Almendarez-Torres, a court does not violate a defendant's Sixth Amendment jury trial right by imposing a sentence that exceeds the statutory maximum on the basis of a defendant's prior conviction. (Blakely, supra, 542 U.S. at p. 301, citing Apprendi, supra, 530, U.S. at p. 490.)

Asserting that the United States Supreme Court "consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction," the Black II court concluded that the Almendarez-Torres 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 II, supra, 41 Cal.4th at p. 819.) The court reasoned:

"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.]" (Black II, supra, 41 Cal.4th at pp. 819-820.)

The trial court's determination that Jackson's criminal history indicates that she is a serious danger to society is "related" to the "fact that a prior conviction occurred," within the meaning of Black II. (Black II, supra, 41 Cal.4th at p. 819, citing, e.g., U.S. v. Smith (6th Cir. 2007) 474 F.3d 888, 892 [no jury trial right as to determination that the defendant's criminal history was "extensive and egregious"].) Because this aggravating circumstance "independently satisf[ies] Sixth Amendment requirements" pursuant to the Black II court's interpretation of the Almendarez-Torres exception, Jackson was eligible for the upper term. (Black II, supra, 41 Cal.4th at pp. 816, 820 ["[T]he 'statutory maximum' sentence to which defendant was exposed by the jury's verdict was the upper term, because at least one aggravating circumstance . . . was established by means that satisfy the requirements of the Sixth Amendment."].) The trial court was thus free to select the upper term without violating Jackson's right to jury trial.

IV.

DISPOSITION

The judgment of the trial court is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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^[1] Further statutory references are to the Penal Code unless otherwise indicated.

^[2] Jackson had pled guilty to child abduction in a prior case and was released from custody "on bail, and on her own recognizance" pending sentencing at the time she committed the current offenses. In a supplemental brief filed on appeal, Jackson challenges the imposition of an upper term sentence for the child abduction conviction. However, Jackson has not appealed from her conviction or sentence in that case. We therefore do not address her argument pertaining to that case.

^[3] These allegations were bifurcated prior to trial.

^[4] The trial court instructed the jury as follows: "[T]here is a jury instruction which I'll read to you at this point in time. It's called CALJIC 17.42, jury must not consider penalty, noncapital case. In your deliberations do not discuss or consider the subject of penalty or punishment. That subject must not in any way affect your verdict."

^[5] At trial, the prosecutor suggested that defense counsel's use of Stephanie's statement was "improper," apparently because the statement referred to the issue of three strikes. As a point of clarification, however, defense counsel's reference to the "three strikes" issue was not improper in this context. Although counsel and the court should not refer to issues of potential punishment in front of the jury, that is not what occurred here. Defense counsel raised the three strikes issue only to introduce it as a prior statement made by a witness, not to suggest that it was in any way true or that the jury should consider the punishment Jackson could potentially face if convicted. Specifically, defense counsel was quoting Stephanie's statement in an attempt to establish Jackson's defense that Stephanie was fabricating certain aspects of the story out of anger toward Jackson and a desire to cause Jackson harm. Defense counsel was not suggesting to the jury that the case involved strikes, and the statement was not automatically impermissible simply because it involved a reference to three strikes. However, the court's attempt to cure any potential problem caused by defense counsel's reference to three strikes by admonishing the jury was proper.

^[6] When asked when she had spoken with Rose, the prosecutor responded, "I think either last night or I don't remember exactly. It was not this morning. It was probably last night or yesterday afternoon sometime." Defense counsel noted, "She [Rose] was put on the witness list last week." The prosecutor said, "Yes, but I hadn't had a chance to talk to her and she wasn't interviewed by a cop."

^[7] Although the prosecutor had represented to the court that Rose had created no report regarding this incident, on cross-examination, Rose stated that she had created a report about the incident, but that she had not given the report to the prosecutor.

^[8] While the prosecutor may not have willfully withheld this information from the defense, regardless of the prosecutor's intent, she failed to fulfill her duty to disclose. Section 1054.1 requires that a prosecuting attorney disclose to the defendant "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial . . . ." ( 1054.1, subd. (f).) Section 1054.7 establishes that at any time within 30 days of trial, disclosure is required immediately upon the discovery of material information: "The disclosures required under this chapter shall be made at least 30 days prior to the trial . . . . If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why disclosure should be denied, restricted, or deferred. 'Good cause' is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement."

Courts have interpreted the statutes as imposing on both the prosecution and defense a continuing duty to disclose to the other party relevant oral statements made to them by witnesses they intend to call to trial as well as statements that have been reduced to writing. (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 166-168.)

^[9]Blakely v. Washington (2004) 542 U.S. 296 (Blakely).