P. v. Anderson

Filed 1/30/08 P. v. Anderson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
MARKCINE ANDERSON,
Defendant and Appellant.
B189211
(Los Angeles County
Super. Ct. No. TA075280)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Ronald V. Skyers, Judge. Affirmed.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan
Sullivan Pithey and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and
Respondent.

-- 1 of 16 --

2
Markcine Anderson appeals following her conviction by jury of attempted murder,
with findings she used a deadly weapon and inflicted great bodily injury. The jury found
not true the allegation that appellant committed the offense willfully, deliberately, and
premeditatedly. Sentenced to a term of 13 years, she contends that the following rulings
constituted prejudicial error: (1) admission of a police officer’s testimony that, when
interviewed, appellant avoided his questions; (2) admission of a psychiatrist’s opinions
about appellant’s veracity and motive; (3) allowing the prosecutor to comment on
appellant’s failure to testify; (4) alleged failure to hold a hearing on the voluntariness of
appellant’s Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436); (5) imposing an
upper term sentence allegedly in violation of the right to jury trial. We find these rulings
either were not error or were not prejudicial, and we affirm the judgment.
FACTS
Appellant initially pled not guilty by reason of insanity, but withdrew that plea
after she was examined pursuant to Penal Code section 1027 (undesignated section
references are to that code). Viewed in accordance with the governing rules of appellate
review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that
sometime between 7:00 and 8:00 a.m. on June 24, 2004, appellant, then age 36,
repeatedly stabbed her nine-year-old nephew Timothy M. with a kitchen knife, at the
home where they both resided, together with appellant’s mother Angeline Sanders,
Timothy’s two brothers and cousin, and appellant’s brother George Kennedy.
(Timothy’s father, Lacour Harrison (also Sanders’s son) did not live there.) With nobody
else at home, appellant entered the bedroom where Timothy was watching television, and
after he stood up she stabbed him more than once in the stomach. Timothy tried to run
from the room, but appellant grabbed his shirt and stabbed him in the back. She then
stabbed him in the chest, both arms, and right middle finger. In shock, Timothy lay on
the floor. Appellant left the room and closed the door.
Timothy testified that on an occasion previous to the stabbing, appellant had come
into a room in which Timothy’s cousin was helping him with homework, and had struck

-- 2 of 16 --

3
Timothy in the back with a wooden snake. On another occasion, she had locked Timothy
out of the house when he returned home from school.
When Sanders returned to the house around 9:00 a.m., Timothy called to her, and
she went to his room upstairs. Still on the floor, Timothy told Sanders appellant had
stabbed him. Sanders observed a laceration in Timothy’s abdomen, from which
intestines were protruding, and there was blood on the floor, walls, and window. Sanders
screamed, rousing her son Kennedy, who had recently returned home and fallen asleep.
He covered Timothy’s wounds while Sanders phoned 911. Paramedics transported
Timothy to Harbor UCLA Medical Center. He arrived near death from bleeding, with
several potentially fatal wounds, and underwent surgery to repair numerous organs.
Timothy remained hospitalized for six weeks, and suffered scars.
Kennedy went looking for appellant, whom he had seen walking toward a metro
rail station as he went home. He located her at a bus stop in Carson, more than 10 miles
from home. She was under police detention. Kennedy asked her why she had “done
that” to Timothy, and she replied, “Timothy who? Do what to Timothy?”
Los Angeles Police Detective Juan Gonzales and his partner arrived at the Sanders
residence following uniformed officers. Detective Gonzales observed a seven to eight-
inch bloody knife by the kitchen sink, and in Timothy’s room he found a blood-stained
shirt with six holes in front and four in back, consistent with penetration by a knife. The
detectives proceeded to the police station where appellant had been taken, and questioned
her. Appellant first was read her Miranda rights, and stated she understood each of them.
When then asked whether she wanted to talk about what had happened, appellant replied,
“No. It doesn’t matter. I didn’t do anything.”
Appellant proceeded to make statements that Detective Gonzales characterized as
having nothing to do with the investigation or the questions posed. For example,
appellant said that children shouldn’t be at her house; only she and her mother should be.
Appellant said the children upset her. Asked about her knowledge of the offense, she
remarked “Timothy who?” and said she had no idea what the detectives were talking
about.

-- 3 of 16 --

4
On cross-examination by appellant, Detective Gonzales admitted that an audio
recording made of appellant’s interview could not be located. Questioned extensively
about appellant’s having given answers unrelated to the investigation, Detective Gonzales
stated that “she seemed to be giving me attitude,” which he illustrated as involving
rolling her eyes and staring at the wall, “as if we were wasting her time.”
On redirect examination, Detective Gonzales testified that other criminal suspects
he had interviewed had similarly given him attitude. Then, asked how he would describe
appellant’s behavior, the detective replied, “Just seemed like she was avoiding the
questions.” Appellant’s motion to strike on grounds of speculation and lack of
foundation was denied. The witness then volunteered, “She was avoiding questions. She
was pretty much – seemed to be lying. Didn’t want to – [.]” This time the court
sustained appellant’s motion to strike. On recross examination, Detective Gonzales
related that of the defendants he had questioned whom he knew to be mentally ill, some
had not been responsive to questions.
The evidence reflected that appellant had suffered from mental illness for a
significant time. According to Sanders, she frequently engaged in “conversations” with
no one else present, and sometimes answered questions in a way unrelated to them.
Sanders testified that appellant had been in several mental hospitals, initially on direction
of criminal court, and was diagnosed with schizophrenia. When she emerged from her
last hospitalization, she initially took medication, which rendered her much more normal
and social. She then stopped taking it and began to act childlike, walking the streets,
talking to herself, not bathing, responding to questions nonsensically.
Appellant also had been cocaine-dependent. Kennedy testified appellant had used
the substance for 10 years. He did not believe she had been using it at the time of the
stabbing.
Appellant’s defense was that she had been psychotic and delusional, and hence
had not acted with the specific intents of the charges (intent to kill and premeditation and
deliberation), so she should be found guilty only of assault with a deadly weapon.
Psychiatrist Mark Jaffe, who examined appellant in 2004 under court appointment,

-- 4 of 16 --

5
opined that she had a psychotic disorder. It included disorganized thinking, such as
answering questions with unrelated statements. Appellant had told Dr. Jaffe she was
accused of “poking” her 29-year-old, dangerously mentally ill brother (no such person
existed). Dr. Jaffe testified that drug use may induce symptoms like those of a psychotic
disorder, but they cease once the drug use does.
Dr. Jaffe had again interviewed appellant in August 2005.1 She told him that
before the offense she had been angry about, among other things, her mother having
removed a computer from her room and placed it in her niece’s room, so the children
could use it too. Appellant was also angry because her brother Harrison had thrown her
down the stairs when she expressed anger to him.2 When asked about getting the knife
she had used, appellant said she had been thinking about the pain the family had caused
her over the bad children. Earlier voluble, appellant was guarded when asked about the
offense; she admitted stabbing Timothy, but only because perhaps he was giving her
problems.
Appellant also had been diagnosed with a psychotic disorder at Patton State
Hospital, in October 2004. She had been sent there because incompetent to stand trial.
Dr. Jaffe tended to agree with the diagnosis when he saw appellant in 2005. In contrast
to her 2004 examination, in 2005 appellant, then under medication, spoke rationally and
responsively.
Dr. Richard Romanoff, a clinical psychologist, examined appellant in April and
May of 2005. From those visits and his review of appellant’s psychiatric records, he
reached the opinion that she suffered from a schizo-affective disorder, a combination of
thought disorder and affective disorder, as reflected by her incoherence and aural
1 Appellant’s trial took place in October and November of 2005.
2 Harrison, Timothy’s father, testified he had confronted appellant about hitting his
sons, and she had said she would do it whenever she was ready to. Harrison had
responded by grabbing appellant, pulling her down the stairs, and throwing her out the
door to the house.

-- 5 of 16 --

6
hallucinations, and depressive and manic episodes. In her interviews, appellant most
prominently displayed disorganized thinking; she also showed symptoms of paranoid
thinking. She stated that her family was favoring Timothy over her. Appellant cited as
one reason why she “poked” Timothy that his father had thrown her down the stairs a few
days earlier. She said she didn’t know why he had done that. Dr. Romanoff opined that
symptoms of a drug-induced psychosis will dissipate in three months after the person
ceases using.
In rebuttal, the prosecution called Dr. Kaushal Sharma, a forensic psychiatrist who
interviewed appellant at county jail in July 2005. He testified that appellant had
described the offense to him as follows. She had gone to the kitchen to make herself
breakfast – french fries – and had taken out a knife. She then went to use a bathroom
upstairs; there was a downstairs one, and she couldn’t say why she had gone up.
Appellant decided to “play” with the knife, and “poked” her nephew several times, but
not hard. He began to bleed, and appellant left, to go to a shopping mall. Police detained
her. She did not tell them the truth.
The prosecutor asked Dr. Sharma whether he had made a judgment regarding
appellant’s credibility, based on her statements. Appellant’s objections of irrelevance
and “out of the purview of this witness” were overruled, and the doctor said he felt he
could not accept her description “at face value.” Over objection, he gave as reasons that
“when you become a psychiatrist you don’t leave your common sense outside the door,”
people don’t ordinarily cut up potatoes for french fries for breakfast, and appellant
couldn’t explain why she went upstairs with the knife. These and other statements and
conduct led him to believe that appellant was being deceptive. Appellant’s admission she
had not told the police the truth, her response of “Timothy who?” and her statement that
she had poked Timothy but not hard, manifested deceptiveness. Dr. Sharma further
testified, over objection, that in his report he had written that appellant was less than
credible in providing information.
Dr. Sharma further opined that appellant’s behavior could not be explained “on the
basis of any mental illness she may have had at the time of the crime.” Based on

-- 6 of 16 --

7
appellant’s police report statements disparaging the children, Dr. Sharma concluded over
objection that appellant had been jealous of Timothy, it being clear there was “bad blood”
between them. The court struck, however, the doctor’s further statement that the “bad
blood” suggested a reason for appellant’s conduct, which had nothing to do with mental
illness. Dr. Sharma testified that at his interview appellant had not shown symptoms of
schizo-affective disorder, and that based on various documentation there was no evidence
she had done so on the date of the stabbing.
Other aspects of the trial proceedings that appellant assigns as error are described
below.
DISCUSSION
1. Opinions About Appellant’s Truthfulness and Jealousy.
Appellant contends that the trial court erred in admitting testimony by Detective
Gonzales impugning her credibility, as well as Dr. Sharma’s testimony about appellant’s
untruthfulness and her jealousy of the victim. We find no error with respect to Detective
Gonzales, but we conclude that both of appellant’s claims regarding Dr. Sharma’s
testimony are well taken. However, we further conclude that the error was harmless.
A police officer’s testimony that a witness whom he interviewed was or was not
telling the truth has been held inadmissible, as neither proper lay or expert opinion under
Evidence Code sections 800 and 801 nor relevant. (People v. Sergill (1982) 138
Cal.App.3d 34, 39-40; see People v. Melton (1988) 44 Cal.3d 713, 744.) However,
Detective Gonzales’s testimony did not violate these restrictions. Appellant directs his
claim to the detective’s statement that it “Just seemed like she was avoiding the
questions.”3 Contrary to appellant’s urgings, this statement was not an implied opinion
of disbelief or untruthfulness. Rather, it restated Detective Gonzales’s account of
appellant giving responses that did not relate to the questions posed. Moreover, the
ascribed behavior, of avoiding questions, could just as well be understood to reflect
3 Appellant’s objections and motion to strike the testimony were sufficient to
preserve her appellate contentions regarding it.

-- 7 of 16 --

8
irrationality, or simple uncooperativeness.4 Detective Gonzales testimony did not
constitute an impermissible opinion about appellant’s credibility.
The record is different with respect to Dr. Sharma. The prosecutor directly asked
for his opinion about appellant’s credibility, and, over objections, the doctor stated that he
could not accept appellant’s account of her conduct in the offense, that he perceived her
as deceptive, and that he had reported that she was less than credible. These opinions
should not have been admitted. They contravened the established rule that expert
witnesses may not opine about credibility, as that subject is not beyond common
experience. (Evid. Code, § 801, subd. (a); People v. Coffman and Marlow (2004) 34
Cal.4th 1, 82; see People v. Chatman (2006) 38 Cal.4th 344, 375-376 [discussing and
disapproving use of psychiatric witnesses to assess credibility].)
A similar disqualification applies to Dr. Sharma’s opinion testimony that appellant
was jealous of Timothy. The conclusion that appellant did or did not possess that attitude
or frame of mind was determinable by the jurors, from the same facts Dr. Sharma
referred to. It was not beyond common experience. (People v. Kennedy (1962) 200
Cal.App.2d 814, 818-819.)
Whether the foregoing errors warrant reversal depends upon the “reasonable
probability” test of People v. Watson (1956) 46 Cal.2d 818, 836. We do not believe that
the errors were thus prejudicial. The primary reason is that Dr. Sharma’s opinions about
appellant’s credibility and jealousy pertained to facts and consequent conclusions that the
jury was fully capable of assessing and reaching independently. The doctor himself
explained that his opinions about appellant’s credibility were based on his lay common
sense. The facts giving rise to the conclusion of “jealous” also were patent and
articulated. Moreover, appellant’s credibility was not itself a material issue. What was
relevant was whether her statements were willful, or the product of psychosis. And in her
closing, appellant’s counsel made it clear to the jury that these were lay, not psychiatric,
4 Dr. Jaffe had testified that giving unrelated responses was symptomatic of
appellant’s mental disorder.

-- 8 of 16 --

9
opinions. The erroneously admitted testimony did not pose a realistic threat of
misleading the jury in their function of assessing the evidence and issues. There is not a
reasonable probability that appellant would have obtained a more favorable verdict had
the testimony not been admitted.
2. Comment on Appellant’s Failure to Testify.
Appellant next contends that the court and the prosecutor committed constitutional
error by respectively authorizing and delivering comment, disparaging of innocence,
about appellant’s failure to testify at trial, in violation of the Fifth Amendment and
Griffin v. California (1965) 380 U.S. 609 (Griffin). We agree with this contention, but
also find the error to be harmless.
The comment followed a ruling made during final arguments. During her initial
argument, the prosecutor had exhorted the jury to find malice (intent to kill) and
premeditation and deliberation by considering appellant’s conduct before the stabbing,
and the types of wounds she inflicted. In reviewing this evidence, the prosecutor
attributed certain thoughts to appellant. In her responsive argument, defense counsel
urged that this technique involved impermissible speculation, because there was no
evidence of what appellant had thought. Counsel stated, “For instance, if the defendant
had testified and she had provided information . . . in terms of what she was thinking and
what she was going to do,” then her thoughts could be propounded for consideration.
Turning to the definitions of premeditation and deliberation, counsel further stated, “We
don’t have any evidence of that. We don’t have any information from [appellant] during
the course of this trial providing us that information. And, again, it’s not for you to
speculate. What we do have are statements that she makes at a later time . . . .”
At this point the prosecutor objected. At the bench, she argued it was improper for
counsel tell the jury that because appellant didn’t testify, other evidence couldn’t be
considered. The prosecutor suggested this was intrinsically incorrect, and also that it
constituted Griffin error by the defense. The court responded that there was no error or
impropriety, but that counsel’s argument had opened the door to rebuttal “on that area.
I’m not saying it’s wide open for the prosecution to say or talk about what could be

-- 9 of 16 --

10
testified to. But clearly she could rebut by saying, but if she did take the witness stand,
on the contrary, this would be shown, just limited to the areas that you have opened it.”
(Italics added.) Appellant’s counsel protested that this ruling would engender a violation
of Griffin, but the court responded that “if you open the door to some speculation about
what could have been shown if she took the witness stand, I believe there can be rebuttal
as to what could or could not have been shown if she did take the witness stand.”
In her final argument, the prosecutor argued that defense counsel had wrongly
asserted that the jury couldn’t consider circumstantial evidence of appellant’s thinking
unless she gave direct evidence by testifying. The prosecutor explained, “We have to
prove our case . . . without the defendant taking the stand . . . .” The prosecutor then
concluded: “If her client took the stand, we would have known what happened. Why her
client didn’t take the stand? She knows not to talk to you. She knows where she is. She
knows her own statements can incriminate her like they have already done.”
Appellant contends that the last-quoted remarks about her failure to testify were
Fifth Amendment error under Griffin. They were. To protect the defendant’s
constitutional right not to testify, generally “the prosecutor may neither comment on a
defendant’s failure to testify nor urge the jury to infer guilt from such silence. [Citations,
including Griffin].” (People v. Hardy (1992) 2 Cal.4th 86, 154.) In her remarks, the
prosecutor not only referred to appellant’s silence as an absence of evidence, but further
characterized appellant’s motive in not testifying, implying that to have done so would
have incriminated her.
Respondent avers that the prosecutor’s argument should be considered a fair and
proper response to defense counsel’s reference to appellant’s failure to testify,
permissible under United States v. Robinson (1988) 485 U.S. 25 (Robinson). In that mail
fraud prosecution, defense counsel argued to the jury several times that the government
had not given the defendant an opportunity to explain certain matters. The trial court
ruled that to the extent counsel had referred to the defendant’s ability to testify, he had
opened the door to rebuttal. In his rebuttal, the prosecutor argued that the defense
position about opportunity to explain was wrong, that the defendant had given some

-- 10 of 16 --

11
explanations during investigation, and “‘He could have taken the stand and explained it to
you, anything he wanted to. The United States of America has given him, throughout,
the opportunity to explain.’” (Id. at p. 28.) The Supreme Court held that this reference to
the defendant’s failure to testify did not infringe Griffin, because it constituted only “a
fair response to a claim made by defendant or his counsel . . . .” (Id. at p. 32.)
In the present case, appellant agrees that the prosecutor’s initial rebuttal
comments, explaining that they jury could consider circumstantial evidence of appellant’s
thinking despite her failure to testify, constituted a fair response to appellant’s argument
to the contrary, permissible under Robinson, supra, 485 U.S. 25. But the following
portion of the rebuttal went far further. The comments impugned appellant’s
constitutional choice not to testify, and asserted that it had been motivated to avoid
testimony that could have been incriminating. Griffin prohibits this type of
disparagement of the defendant based on election of the constitutional right, as well as
attribution of knowledge supposedly withheld. (Robinson, supra, 485 U.S. at pp. 30, 32.)
Accordingly, the court’s permitting and the prosecutor’s pursuing the type of
comment on appellant’s exercise of her Fifth Amendment right that finally developed
constituted constitutional error. Under Chapman v. California (1967) 386 U.S. 18, this
error requires reversal unless it may be found harmless beyond a reasonable doubt,
meaning that the error did not contribute to the verdict. (Id. at p. 24.) That is the case
here.
First, although the prosecutor’s comments were improper, they were hardly
informative. The initial statement, that if appellant had taken the stand “we would have
known what happened,” essentially reiterated something appellant’s counsel had already
argued, and which was rather obvious. The remainder of the comments, that appellant
had not testified to protect herself from self-incrimination, were a familiar
characterization of invoking the Fifth Amendment, and they also were undocumented,
speculative, and not inherently persuasive.
Second, appellant urges that the remarks were surrounded by references to specific
intent. But the subject of testimony by appellant regarding her thinking, was connected

-- 11 of 16 --

12
throughout the arguments with the question of premeditation and deliberation. That was
the issue the prosecutor repeatedly referred to before making her comments.
Notwithstanding this emphasis on the absence of appellant’s testimony with respect to
premeditation and deliberation, the jury decided that issue in appellant’s favor. That
verdict is strong evidence that the objectionable comments were not persuasive, and that
they did not contribute to the verdict.
Third, the jurors were instructed directly opposite to the prosecutor’s remarks.
Under CALJIC No. 2.60, they were told: “A defendant in a criminal trial has a
constitutional right not to be compelled to testify. You must not draw any inference from
the fact that a defendant does not testify. Further, you must neither discuss this matter
nor permit it to enter into your deliberations in any way.” We are satisfied, beyond a
reasonable doubt, that the Griffin violation did not affect the verdict, and was
constitutionally harmless.
4. Cumulative Error
Appellant appends to his first three contentions, just reviewed, a further argument
that even if the asserted errors were not individually prejudicial, together they deprived
him of a fair adjudication, and therefore they collectively require reversal. We do not
agree. Apart from the fact that appellant’s first claim of error is meritless, there was no
prejudicial effect from the errors identified, and appellant received a full and fair trial.
(Cf. People v. Jenkins (2000) 22 Cal.4th 900, 1056.)
5. Waiver of Miranda Rights.
Appellant contends that the trial court erroneously refused to afford her a hearing
regarding the voluntariness of her waiver of Miranda rights, and the consequent
admissibility of her statements made after that waiver. The claim lacks merit, because
appellant received such a hearing.
In a motion made just before Detective Gonzales testified, appellant’s counsel
urged that appellant’s mental illness had rendered her waiver of rights “not knowing, and
therefore not voluntary.” Counsel explained that this would be substantiated by “what
the testimony’s been so far, in addition to what the officer’s going to say concerning the

-- 12 of 16 --

13
observations he may have heard.”5 Counsel concluded, “So it’s my position that, in fact,
any statements that arise . . . after those rights were read should be [sup]pressed,
[because] she was not able to make a knowing and intelligent waiver.”
The court then suggested that once Detective Gonzales testified to the objective
facts of Miranda warnings and waiver, “then it [voluntariness] becomes a jury issue.”
Counsel responded that the issue was one for the court, involving admissibility. The
court expressed concern that to find the waiver involuntary would effectively take the
question of intent from the jury. After defense counsel reiterated that the issue was one
of admissibility, the court stated that the evidence as to appellant’s mental condition did
not in his opinion prevent her from giving an intelligent Miranda waiver. After referring
again to not taking the issue of mental state from the jury, the court ruled that “based on
what your motion is . . . if the Miranda rights are given and responded to appropriately
during the testimony of the officer, I’m going to allow the statement in.” Appellant could
then yet explore the issue of intelligent waiver. Her statements would be “admitted
conditionally while the foundation is laid that there’s Miranda given and waived.”
Appellant’s contention is that she was denied a hearing on the preliminary fact of
the voluntariness of her Miranda waiver. (See Evid. Code, §§ 402, 405.) But appellant
received such a hearing. Her counsel moved to suppress her statements as involuntary,
based on the evidence of record concerning mental illness and such further facts as
Detective Gonzales’s testimony might provide. Counsel did not seek to present any
further evidence. After hearing argument, the court ruled that the evidence of “mental
state” did not require a finding of involuntariness, and that the post-waiver statements
would be conditionally admitted, subject to Detective Gonzales’s testimony. The court
afforded appellant the requisite hearing to determine voluntariness on the evidence
invoked.
5 The court and jury had already heard the lay testimony concerning appellant’s
mental illness, and also Dr. Jaffe’s testimony.

-- 13 of 16 --

14
The court’s allusions to preempting the jury’s determination of intent in light of
mental illness were misconceived, because the issue of voluntariness was not identical,
and even if it had been the correct course was not to inform the jury of the ruling. (See
Evid. Code, § 405, subd. (b)(1).) But regardless, the court did hear and decide
appellant’s challenge to the voluntariness of her Miranda waiver, based on the evidence
that appellant requested be considered.
6. Upper-Term Sentencing.
The trial court sentenced appellant to the upper term of nine years (§ 664),
enhanced by three years for infliction of great bodily injury (§ 12022.7, subd. (a)) and an
additional year for use of a deadly weapon (§ 12022, subd. (b)(1)). In imposing the upper
term, the court relied on the factors in aggravation adduced by the prosecution, which
included that the crime involved great violence, great bodily harm, and other acts
disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court
(hereafter cited as rules), rule 4.421(a)(1)); the defendant used a weapon (rule
4.421(a)(2)); the victim was particularly vulnerable (rule 4.421(a)(3)); the manner of the
crime indicated planning, sophistication, and professionalism (rule 4.421(a)(8)); and the
defendant engaged in a pattern of violent conduct indicating a serious danger to society
(rule 421(b)(1)). The court acknowledged the presence of a mitigating factor derived
from appellant’s mental illness (see rule 4.423(b)(2)), which was outweighed by the
aggravating factors.
Appellant contends her upper-term sentence was imposed unlawfully, because the
only two aggravating facts that the jury found (weapon use and bodily injury) were used
to enhance the sentence (rule 4.420), and use of the remaining factors violated appellant’s
constitutional jury trial rights under Cunningham v. California (2007) 549 U.S. __ [127
S.Ct. 856] (Cunningham) and its United States Supreme Court antecedents. Those cases
hold that “Except for a prior conviction, ‘any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.’” (Id., 127 S.Ct at p. 868.)

-- 14 of 16 --

15
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court explained
that the requisites of Cunningham et al. are satisfied if one aggravating factor is
established in accordance with the rules of those cases. At that point, the defendant is
eligible for the upper term, and further judicial finding or balancing of factors in deciding
whether to impose it is constitutionally permissible. (Black II, supra, 41 Cal.4th at pp.
813, 815-816.) Therefore, the Black II defendant’s criminal history (see rule
4.421(b)(2)), referred to in the prosecutor’s sentencing memorandum and the probation
report, properly rendered the defendant upper-term eligible, under the prior conviction
exception of the United States Supreme Court cases. (Black II, supra, 41 Cal.4th at pp.
818-820.)
The present case is on all fours. The probation report listed as an aggravating
factor appellant’s having served a state prison term, and the prosecutor’s sentencing
memorandum reiterated this circumstance (rule 4.421(b)(3)). This reflection of a prior
felony conviction qualified appellant for the upper term, and did not require a jury
finding under Cunningham et al. (Black II, supra, 41 Cal.4th at p. 819.) Accordingly, as
explicated by Black II, the use of other judicially found factors in imposing an upper-term
sentence on appellant did not abridge her federal jury trial rights.

-- 15 of 16 --

16
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COOPER, P.J.
We concur:
RUBIN, J.
FLIER, J.

-- 16 of 16 --