P. v. Lockman

Filed 5/1/07 P. v. Lockman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN ANDREW LOCKMAN,
Defendant and Appellant.
D048492
(Super. Ct. No. SCD191799)
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed.
A jury convicted Steven Andrew Lockman of two counts of assault with a deadly
weapon (Pen. Code,1 § 245, subd. (a)(1); counts 1 & 5), vandalism over $400 (§ 594,
subd. (a)(b)(1); count 2), hit and run (Veh. Code, § 20002, subd. (a); count 3), and two
1 All statutory references are to the Penal Code unless otherwise specified.

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counts of reckless driving (Veh. Code, § 23103, subd. (a); counts 4 & 6).2 The jury also
found true allegations as to counts 1 and 5 that Lockman had personally used a deadly
weapon in those crimes (§ 1192.7, subd. (c)(23)). Lockman then admitted allegations he
had previously suffered a prior conviction for a serious or violent felony (§§ 667, subd.
(a)(1), 668, 1192.7, subd. (c)), which also constituted a strike under the Three Strikes law
(§§ 667, subd. (b)-(i); 1170.12).
After denying Lockman's motion for a new trial and granting his motion to strike
his prior strike, the trial court sentenced Lockman to prison for a total of 10 years,
consisting of an upper four-year term for the count 1 assault with a deadly weapon, one
year consecutive for the count 5 deadly weapon assault (one-third the midterm), plus five
years for the serious prior.
Lockman appealed, contending there was insufficient evidence to support his
count 5 assault with a deadly weapon conviction, the trial court abused its discretion in
denying his new trial motion directed to count 5 based on modifying a previously
submitted jury instruction at the People's request after the jury had already been
instructed, and he was denied a fair trial by the jurors being given a transcript of a 911
call containing a prejudicial statement, which the trial court had ordered redacted before
the playing of the call.
2 The counts 3 and 4 convictions were lesser offenses of those charged respectively
for hit and run with injury (Veh. Code § 20001, subd. (a)) and reckless driving with
bodily injury (Veh. Code § 23104, subd. (a)).

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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), 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 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). Lockman has filed
a supplemental brief claiming the imposition of his upper term sentence for count 1 is
unconstitutional under Cunningham. We affirm Lockman's convictions and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Lockman was arrested after an investigation into a road rage incident on May 24,
2005. During the investigation it was discovered that Lockman had also been involved in
a similar incident on August 19, 2004, which was then pending further proceedings.
After additional examination of police reports and interviews with witnesses and
Lockman, Lockman was charged with the offenses in this case stemming out of those two
incidents. The following evidence was presented at Lockman's trial.
A. The August 2004 Incident (Counts 1, 2, 3 and 4)
On August 19, 2004, as Marsha Norquist, a Filipino woman, was driving through
Clairemont with her 11-year-old son, a white truck abruptly stopped in front of her, about
30 to 40 feet before an upcoming stop sign. After stopping behind the truck, Norquist
waited about a minute for the white truck to move before honking. In the meantime,
another car that had pulled up behind Norquist, proceeded around both her and the white

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truck. When the truck did not move, Norquist drove around the truck, and stopped at the
stop sign. While she was stopped, the driver of the white truck bumped into her.
Because she was not hit very hard, Norquist dismissed the tap as an accident and
proceeded through the intersection.
Then while Norquist was crossing the intersection, the white truck rear-ended her
again, only this time much harder. As Norquist sped up and proceeded driving toward
her home along a curved road, the man in the white truck followed her and kept hitting
her car from behind. She believed the truck hit her five or six times really hard and
lightly bumped her about 15 times. Although each hit was mostly directly from behind,
sometimes the truck would swerve a little to the side when hitting her. Norquist was
scared to pull over and her son told her, "no mommy. I think he's crazy. Don't pull
over." Norquist said she was afraid for her life and afraid that the truck hitting her car
would push and jolt her forward into oncoming traffic. When the truck rear-ended
Norquist the final time right before she turned onto her street, the driver leaned out the
window and yelled a racial slur, calling her a "stupid brown fucking gook bitch," as he
drove by. Norquist identified Lockman in court as the man driving the white truck during
the incident which lasted about a fifth of a mile.
After the incident, Norquist ran inside her home, called her husband and then
dialed 9-1-1. She gave the 911 dispatcher a description of Lockman's truck, including its
license plate number which her son had jotted down, and noted that there was a sticker on
the truck that said, "Don't trash California." Norquist also initially told the dispatcher that
there was no damage to her car and that there were no injuries.

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When San Diego Police Officer Alejandro Diaz responded to Norquist's call, he
found her crying and that both she and her son were visibly shaking. Norquist and her
son separately talked with Diaz about the incident. Diaz looked at Norquist's car and
noticed damage to her bumper. Norquist then went outside and saw the damage. She
called the dispatcher back and reported that there were scratches and white paint chips on
her car's bumper. Both of Norquist's calls to 911 were played for the jury.
Norquist testified that it was not until the next day that she had a sore and stiff
neck. She subsequently was treated by her chiropractor. She also saw a psychologist to
address her fears resulting from the incident. Norquist paid $500 to have her bumper
replaced.
On cross-examination, Norquist explained that she had suffered a lower back
injury in 1989, and had also been in an accident about six months before the incident for
which she had also seen her chiropractor. She had not disclosed this information about
her prior injuries at the preliminary hearing because she had not understood the questions.
Although Norquist's son's testimony was consistent with both Norquist's testimony
and with what he had told Diaz about the incident, he was not able to recognize the
truck's driver in court.
The claims representative processing Norquist's accident report for Geico
Insurance Company testified that the adjustor who inspected Norquist's car estimated the
damage to her bumper was $574.76. When the Geico representative spoke with
Lockman, he denied any involvement in the accident.

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B. The May 2005 Incident (Counts 5 and 6)
At about 2:30 p.m., on May 24, 2005, as Billie DeWitt was driving from her home
in Point Loma to the uptown area of San Diego to pick up her elderly mother for an
appointment, a man in a white truck without a camper shell drove in the lane next to her
on Nimitz Boulevard. When the two lanes eventually merged, DeWitt's car was in front
of the man's truck. At the intersection of Nimitz Boulevard and Rosecrans Street, the
man, whose face was bright red, pulled up next to De Witt who had stopped at the light,
rolled down his window, and screamed obscenities at her. He called her a "fucking
bitch," asked her "where did you learn to drive?" and told her to "get the hell off the
road."
As soon as the light turned green, DeWitt proceeded on Nimitz Boulevard, made a
left turn onto North Harbor Boulevard, and headed toward downtown. Meanwhile, the
man, whom De Witt identified at trial as Lockman, weaved in and out of traffic in an
attempt to catch up to DeWitt and get beside her. When DeWitt stopped at a light on
Harbor Island Drive, Lockman continued through the intersection but pulled over to the
side of the road, waving cars around him while he waited for DeWitt to catch up to him.
As DeWitt drove forward, Lockman cut across two lanes of traffic and got alongside of
her, still yelling and cussing at her.
When DeWitt moved into the left hand turn lane to turn onto West Laurel Street
without using her turn signal in hopes of losing Lockman, he cut across Harbor
Boulevard to the turn lane and got behind her. As she then turned onto West Laurel
Street, continuing forward in the right hand lane, Lockman cut over to the left hand lane,

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crossing over double yellow lines into oncoming traffic to pass a slower car to catch up
with DeWitt. Driving on her left hand side, Lockman pulled his truck closer and closer to
DeWitt's car, crossing the lane divider, and forcing her toward the curb. DeWitt said her
car was right up against the curb, and her rear view mirror was almost touching
Lockman's truck's side mirror. If she had gone up onto the curb, she would have hit a
light post or one of the palm trees lining the street. Lockman tried to run her into the curb
for about two and a half very long blocks.
When DeWitt stopped at the intersection of West Laurel Street and India Street,
she was in the far right lane which is the only lane that can proceed straight ahead, and
Lockman was next to her in the "left turn only" lane. At this point, DeWitt called 911 on
her cellular phone and held the phone out the window so the dispatcher could hear
Lockman yelling at her, "You're a stupid fucking bitch, you ain't talking to nobody."
When the light turned green, Lockman cut through the intersection so he was driving in
front of DeWitt. As they drove up West Laurel Street hill, he repeatedly slammed on his
brakes, almost causing DeWitt to run into the back of his truck. When West Laurel Street
divided into two lanes, Lockman got into the left lane next to DeWitt.
DeWitt then quickly turned right on Fourth Avenue and tried to pull into a parking
space. As she did so, Lockman came roaring by and swerved his truck toward her car as
if he were trying to clip or hit her. Because the space she was trying to park in was too
small, DeWitt pulled out of that spot and into a crosswalk, where she locked her car and
waited on the phone with the dispatcher for police officers to arrive. During this time,
Lockman drove by DeWitt several more times and she exclaimed at least twice to the

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dispatcher, "Oh, my god, here he comes again." When a parking enforcement officer
came by and asked DeWitt to move her car, DeWitt explained the situation and asked the
officer to stay with her. When Lockman noticed the parking enforcement officer
standing next to DeWitt, he stopped driving by. This second incident lasted over a four
and half mile distance. DeWitt said she had never been so scared in her life.
On cross-examination, DeWitt explained that she was referring to the fact her
husband worries about her whenever she is out of his sight, and not about her ability to
drive, when she told the dispatcher during her 911 call that, "My husband's going to be so
upset; I told him I could handle this by myself." DeWitt also noted that when she told the
dispatcher she had just taken her medication, she was referring to her Premarin which she
takes for hot flashes and the change of life. She explained that such medication tends to
upset her stomach.
The redacted CD of DeWitt's 911 call to police regarding the incident was played
for the jury over defense objection.
The San Diego Police Department investigator assigned to the DeWitt case
testified that when she ran the license plate number of the white truck, it was learned that
the truck was registered to Lockman and that he had been involved in the earlier Norquist
case. When the investigator later talked with Lockman about the two incidents, she
determined that Lockman lived about two miles from Norquist's home, and worked about
eight blocks from the DeWitt incident. He also told the investigator that he had owned
the truck for five years, he was its only driver, and his job required him to run errands and
make deliveries in the truck.

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When asked about the incident with Norquist, Lockman replied, "Oh, over on Mt.
Aguilar, well, this woman was tailgating me, and so I just stopped at the stop light, stop
sign; and I just sat there and stared at her in my rear-view mirror and she was so stupid.
And then she went around me and that was it." Lockman later denied any knowledge
about the Norquist incident when questioned further about the matter.
When the investigator then asked Lockman if he had been involved in the DeWitt
incident, he said, "Why, I have no idea. Is that against the law?" He then said, "Well,
she's stupid if she says that was me." He asked the investigator if there had been any
contact between the vehicles, and noted that although he may shake his fist at other
drivers, he did not think that was against the law. Lockman also commented on how
ignorant other drivers were, explaining that "if they were following him, he would pull
over to the side of the road and they were so stupid, they would just pull along behind
him." After the interview, the investigator arrested Lockman on warrants for both
incidents.
C. The Defense Case
Lockman did not testify. Stephen Plourd, an accident reconstructionist and
licensed private investigator, testified in Lockman's defense as an expert regarding both
alleged incidents of road rage. Plourd's testimony was based on his review of the police
reports of both incidents, the preliminary hearing transcript involving the Norquist
incident, photographs, including laser photographs of the damage to Lockman's truck and
Norquist's car, and damage estimates from Geico regarding Norquist's car as well as a
repair estimate for Lockman's truck in 2000. Plourd opined that the evidence only

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showed Lockman's truck had made contact with Norquist's car once, not five times, and
that the contact occurred when Lockman was braking and traveling between one to two
miles per hour at the time of impact. Plourd commented that if Lockman's truck had had
a camper shell on the back, such would have changed the height of his truck.
As to the DeWitt incident, Plourd was of the opinion that if DeWitt's car was right
along the curb while driving up West Laurel Street and Lockman's truck was only a few
inches away, Lockman would have had to move between six and seven feet into DeWitt's
lane. On the other hand, if his truck had just crossed over the line, there would have been
eight or nine feet between the two vehicles. Plourd further opined that a car traveling at
30 miles per hour would have to brake at the bottom of West Laurel Street hill to prevent
it from bottoming out.
On cross-examination, Plourd conceded that a truck or car can be used as a deadly
weapon because vehicular accidents can lead to death or serious injury. He also agreed
there were sturdy palm trees along West Laurel Street, that would not move if hit by a
car, and opined that if a car was forced into one of the trees while traveling between 40
and 45 miles per hour, it could cause serious injury or death.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Lockman contends the evidence was insufficient to support his count 5 conviction
for assault with a deadly weapon on DeWitt because the evidence that he used his car in a
way that was capable of causing and likely to cause great bodily injury or death was

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lacking. He thus asserts his count 5 conviction and the true finding on the allegation of
personal use of the weapon for that conviction must be reversed. We disagree.
In reviewing the sufficiency of the evidence to support a conviction, we determine
" 'whether from the evidence, including all reasonable inferences to be drawn therefrom,
there is any substantial evidence of the existence of each element of the offense charged.'
[Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such
standard, we review the facts adduced at trial in full and in the light most favorable to the
judgment, drawing all inferences in support of the judgment to determine whether there is
substantial direct or circumstantial evidence the defendant committed the charged crime.
(People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th
1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but
whether substantial evidence, of credible and solid value, supports the jury's conclusions.
(People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d
990, 996.)
In making the determination, we do not reweigh the evidence; the credibility of
witnesses and the weight to be accorded to the evidence are matters exclusively within
the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether
" ' "any rational trier of fact could have found the essential elements of [the charged
offenses] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d
1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there
sufficient substantial evidence to support the verdict" the conviction will not be reversed.
(People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

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With regard to the crime of assault "with a deadly weapon or . . . by any means of
force likely to produce great bodily injury" (§ 245, subd. (a)(1)), it is immaterial whether
the victim is actually physically contacted or injured "because the statute focuses on use
of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily
injury. . . . [Citation.]" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar);
original italics.)
Under section 245, subdivision (a)(1), "a 'deadly weapon' is 'any object,
instrument, or weapon which is used in such a manner as to be capable of producing and
likely to produce, death or great bodily injury.' [Citation.]" (Aguilar, supra, 16 Cal.4th at
pp. 1028-1029.) A vehicle operated in a manner to attempt to injure another person has
been held to be a "deadly weapon" for purposes of committing an assault with a deadly
weapon. (People v. Russell (2005) 129 Cal.App.4th 776, 782 (Russell); see also People
v. Wright (2002) 100 Cal.App.4th 703, 706 (Wright); People v. Finney (1980) 110
Cal.App.3d 705, 716.)
" 'Likely' [under section 245, subdivision (a)(1)] means 'probable' or . . . 'more
probable than not.' " (People v. Savedra (1993) 15 Cal.App.4th 738, 744.) Although the
results of an assault are highly probative of the amount of force used, they are not
conclusive. (Russell, supra, 129 Cal.App.4th at p. 782.)
With these rules in mind, we review the record before the jury in light of
Lockman's assertion there was insufficient evidence he committed assault with a deadly
weapon on DeWitt with his truck. Lockman essentially concedes that his truck could be
used as a deadly weapon. He argues, however, that because he never actually hit

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DeWitt's car and did not directly aim his truck at her car, there was no credible evidence,
only DeWitt's implausible testimony, he was driving his truck in a manner that was likely
to cause great bodily injury or death. Lockman asserts DeWitt's testimony was incredible
because at the time she said she feared he was trying to push her off the road into the
curb, she was talking to the 911 dispatcher on her cell phone, and his expert testified a
person would have had to brake on the hill to avoid bottoming out at the time DeWitt
claimed he was trying to cause her to run into him. Lockman thus argues DeWitt's
version of the incident was exaggerated, unbelievable and cannot support the jury's
verdict.
Lockman simply fails to appreciate that we do not reweigh the evidence. The
credibility determination regarding DeWitt's testimony and that of Lockman's expert was
solely for the jury. Under the facts presented at trial, a jury could have reasonably
believed DeWitt's testimony that Lockman drove his truck in a manner to try to push her
off the road into the curb, trees or other objects along a two and a half block stretch of
West Laurel Street and that he pulled his truck in front of her car and abruptly braked to
try to force her to run into him. In addition, the jury could also have believed that
Lockman drove his truck toward DeWitt as she tried to park her car in such a manner
"that it [was] capable of causing and likely to cause death or great bodily injury" if the
truck had actually hit her. (See CALCRIM No. 875.)
Lockman's attempt to distinguish this case from others in which a vehicle has been
used as a deadly weapon because it was utilized against a "pedestrian" and not a person in
another car is unavailing. Lockman's own expert witness testified that vehicular

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accidents can lead to death or serious injury, and that if DeWitt had been forced off the
road into a palm tree along West Laurel Street, such could have caused her serious injury
or death. Further, Lockman's arguments appear to rely on the fact that DeWitt was not
actually hit, which, as noted above, is not a prerequisite for finding the capability of
causing or being likely to cause, great bodily injury or death. (Aguilar, supra, 16 Cal.4th
at p. 1028.) It is enough that a person uses their vehicle in a manner that could
foreseeably cause injury or death. (Wright, supra, 100 Cal.App.4th at pp. 724-725.)
In sum, we conclude there was substantial evidence from which a jury could find
Lockman drove his truck in a manner that was capable of causing, and likely to cause,
death or great bodily injury to DeWitt. The count 5 conviction for assault with a deadly
weapon is therefore supported by sufficient evidence.
II
NO ABUSE OF DISCRETION IN DENIAL OF NEW TRIAL MOTION BASED ON
MODIFICATION OF JURY INSTRUCTION
During jury instruction discussions, the trial court noted that, using its checklist, it
would be giving CALCRIM No. 3145, which is the instruction for "personal, personally
use deadly weapon, the allegation."3 The next morning, the court read the instructions to
3 CALCRIM No. 3145 provides in pertinent part: "If you find the defendant guilty of
the crimes charged in Count[s] ______[,] you must then decide whether[ for each crime,]
the People have proved the additional allegation that the defendant personally used a
deadly weapon . . . during the commission . . . of that crime. [You must decide whether
the People have proved this allegation for each crime and return a separate finding for
each crime.] [¶] A deadly. . . weapon is any object, instrument, or weapon that is
inherently deadly . . . or one that is used in such a way that it is capable of causing and
likely to cause death or great bodily injury. [¶] [In deciding whether an object is a deadly

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the jury, including the CALCRIM No. 3145 provided to the court by the prosecutor for
counts 1 and 5, which stated in part that "someone personally uses a deadly weapon if he
or she intentionally does any of the following: Hits someone with a weapon." At a
sidebar after the initial instructions were read, the prosecutor advised the court that
something had been left off CALCRIM No. 3145, i.e., "use [the weapon] in a menacing
manner as well. So I'd ask the court to read that either now or before [the jury goes]
back." Lockman's counsel objected, saying that the prosecutor had prepared the
instructions which had been given to defense counsel at the beginning of trial, that such
constituted an election of theories on which the defense had relied to prepare all questions
for trial and argument, and that the defense would now be prejudiced because without the
modified instruction, the People could not prove count 5 involving DeWitt. Counsel
noted he had not raised the issue on his motion to dismiss after the prosecution case
because he did not want to bring the matter to the prosecutor's attention so that he could
change it at that time.
weapon, consider all the surrounding circumstances, including when and where the object
was possessed, . . . [where the person who possessed the object was going], . . . [whether
the object was changed from its standard form] [and any other evidence that indicates
whether the object would be used for a dangerous, rather than a harmless, purpose.]] [¶]
Great bodily injury means significant or substantial physical injury. It is an injury that is
greater than minor or moderate harm. [¶] Someone personally uses a deadly weapon . . .
if he or she intentionally does any of the following: [¶] [1]. Displays the weapon in a
menacing manner(./;) [¶] [OR] [¶] [2. Hits someone with the weapon (./;)] [¶] [OR [¶]
(3/2). Fires the weapon.] [¶] The People have the burden of proving each allegation
beyond a reasonable doubt. If the People have not met this burden, you must find that the
allegation has not been proved."

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In response, the prosecutor explained that he had physically changed the
instructions on his computer but had just realized that the printed version had not been
similarly changed due to not properly saving the changes. He also pointed out that such
was an element of the crime the People had to prove with regard to DeWitt as well as
being part of the CALCRIM instruction. The prosecutor further noted that although he
had made a mistake, it had always been the People's theory that Lockman had used a
deadly weapon in a menacing manner against DeWitt because, unlike Norquist, she had
not been hit by Lockman's truck.
Commenting that everyone had notice based on opening statement, the court
agreed to reread CALCRIM No. 3145 to the jury as corrected to also include the theory
that a deadly weapon could be used by displaying it in a menacing manner. Although the
court also noted that elections of theories could be made up until the time a case was
submitted to the jury as long as such election was not prejudicial to the defense, it stated
it was reserving the right to reconsider the matter on a new trial motion if there were a
guilty verdict. The court then provided the jury with the revised CALCRIM No. 3145
which included both theories. After argument and deliberation, the jury returned guilty
verdicts on, among other things, the allegations to counts 1 and 5 that Lockman had
personally used his truck as a deadly weapon in the assaults against Norquist and DeWitt,
respectively.
During the subsequent court trial on Lockman's prior, defense counsel asked the
court to reconsider its jury instruction ruling on CALCRIM No. 3145 and to grant
judgment not withstanding the verdict (JNOV) on count 5 regarding DeWitt. The court

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deferred the matter to sentencing. At that time, the court considered Lockman's motion
for new trial on count 5 on grounds the court had "misdirected the jury in a matter of law"
(§ 1181, subd. (5)) by modifying CALCRIM No. 3145 before argument in light of the
defense reliance on the original instruction the prosecutor had provided at the start of
trial.4 After discussion and argument on the matter, the trial judge denied the motion,
stating:
"I don't think counsel on either side can assume during your
presentation of your case, either by direct or cross-examination, that
any jury instructions that are being offered are the instructions that
will finally be given. I can see where you might have had an issue
from the defense perspective of having prepared your argument. [¶]
As far as impacting your . . . cross-examination of witnesses, that is
a risk you took, and there were other reasons, potentially, as to why
different tactics were used with the particular witnesses. So I don't
believe at this point that the cross-examination issue is a valid one
for purposes of granting a new trial, and I did re-instruct before the
argument occurred so both sides had an adequate opportunity to
modify their arguments. I don't believe that there is prejudice that
would necessitate the granting of a new trial in this particular
instance as to count 5."
On appeal, Lockman contends the trial court erred in denying his new trial motion
on count 5 on grounds his constitutional rights to a fair trial, to confront witnesses against
him and to the effective assistance of counsel were violated by modifying CALCRIM No.
3145, defining the use of a deadly weapon. He specifically argues the late modification
of the instruction violated section 1093.5 and denied him due process. We disagree.
When a verdict has been rendered or a finding made against the defendant, he may
move for a new trial on various statutory grounds, including that the trial court
4 Neither counsel nor the court referred to or acted upon the deferred JNOV motion.

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"misdirected the jury in a matter of law. . . ." (§ 1181, subd. (5).) "A trial court may
grant a motion for new trial only if the defendant demonstrates reversible error.
[Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1159 (Guerra).) "On appeal, a
trial court's ruling on a motion for new trial is reviewed for abuse of discretion.
[Citation.] Its ruling will not be disturbed on appeal ' "unless a manifest and
unmistakable abuse of discretion clearly appears." [Citation.]' [Citation.]" (Id. at pp.
1159-1160.)
We conclude the trial court did not abuse its discretion in denying Lockman's new
trial motion. The record reflects that the trial court independently considered Lockman's
arguments in light of the entire record and the timing of the People's request for a
modification of the standard CALCRIM instruction which defined the elements for
proving the personal deadly weapon use allegation. Contrary to Lockman's assertion
made for the first time on appeal that the timing of the revised instruction was in violation
of section 1093.5,5 the prosecutor requested the instruction be revised before the
commencement of argument. Thus it was determined before argument what instructions
the court planned to give and the parties were given the opportunity to intelligently argue
5 Section 1093.5 provides that, "In any criminal case which is being tried before the
court with a jury, all requests for instructions on points of law must be made to the court
and all proposed instructions must be delivered to the court before commencement of
argument. Before the commencement of the argument, the court, on request of counsel,
must: (1) decide whether to give, refuse, or modify the proposed instructions; (2) decide
which instructions shall be given in addition to those proposed, if any; and (3) advise
counsel of all instructions to be given. However, if, during the argument, issues are
raised which have not been covered by instructions given or refused, the court may, on
request of counsel, give additional instructions on the subject matter thereof."

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the case to the jury based on those instructions. (See People v. Kronemyer (1987) 189
Cal.App.3d 314, 341 (Kronemyer).)
Although material modifications and departures from agreed upon instructions
may in certain circumstances deprive a defendant of a fair trial (Kronemyer, supra, 189
Cal.App.3d at p. 341), such as where the trial judge interrupts a defense counsel's closing
argument in front of the jury to change or correct the law, which in turn requires counsel
to change the thrust of his argument without time to reflect on the court's ruling (see
People v. Sanchez (1978) 83 Cal.App.3d Supp. 1, 5-7), this is not one of those occasions.
As the trial court noted, all parties were on notice that CALCRIM No. 3145 was to be
given for the personal use of a deadly weapon allegations for counts 1 and 5, and that the
prosecution theory for use of a deadly weapon with regard to DeWitt was that Lockman
used his truck in a menacing manner against her. Although the prosecutor did not
discover his computer error in the written instruction he had originally provided the court
and defense counsel until after the court had read the instruction to the jury, such
discovery and request for the reading of the additional theory for use of a deadly weapon
was a correct statement of law based on the trial evidence and, as already noted, was
timely requested before closing argument.
Defense counsel's statements made at the time the court permitted the modification
to CALCRIM No. 3145 and at the new trial motion hearing demonstrate his awareness
that the prosecutor intended to rely on the theory that Lockman used his truck in a
menacing manner against DeWitt to prove his guilt for the count 5 allegation. As the
court below recognized, counsel made a tactical decision not to bring the mistake or

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20
omission of the proper theory in the instruction to the prosecutor's attention in hopes it
would not be caught and the prosecutor would then be bound by the instruction which did
not include his intended theory regarding count 5. Because jury instructions are always
subject to change during trial depending on the evidence presented, we agree with the
trial court's assessment that counsel's reliance on the prosecutor's mistake or omission in
the originally submitted CALCRIM No. 3145 to not fully cross-examine DeWitt was
invalid and unpersuasive on the issue of prejudice.
On this record, Lockman has failed to show that the trial court misdirected the jury
in a matter of law or that there was reversible error caused by its modification of
CALCRIM No. 3145. Consequently, the trial court's ruling in denying Lockman's new
trial motion on count 5 was not an abuse of discretion. (Guerra, supra, 37 Cal.4th at pp.
1159-1160.)
III
READING OF UNREDACTED 911 TRANSCRIPT
In limine, Lockman's counsel noted he had no objection to the admission of the
911 calls regarding the Norquist incident, but objected on relevancy grounds to the
admission of DeWitt's 911 call. After the trial court overruled the objection, noting the
call was ongoing during the incident, was a contemporaneous/spontaneous statement, and
included some of Lockman's own statements which were admissible on the issue of his
state of mind, the prosecutor brought to the court's attention that DeWitt had made one
comment during the call that, "He's been in prison." Unable to determine the context of
the statement because DeWitt did not know Lockman and he had not been to prison, the

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21
prosecutor offered to bring the statement's inaccuracies out in cross or on direct. The
court stated it would not allow that statement to be admitted and asked counsel to relisten
to the CD of the 911 call and have that page "redone."
During trial when Norquist testified about calling 911, the trial judge told the jury:
"Ladies and Gentlemen, when we have audio recordings, the
recording is the evidence, not the transcript. The transcript is
provided as an aid, but that's not the evidence; and you may hear
things differently than you see it in the transcript. It's what you hear
that controls, not what you see in the transcript. [¶] So although we
give you a transcript as an aid, I don't admit them into evidence; and
I'm going to ask that you not mark on them. It's just we're going to
collect it as soon as it's played."
After confirming that the voice on the 911 call was Norquist's, the prosecutor
played the first tape in full for the jury. After confirming that the second 911 tape
contained Norquist's voice, the court reminded the jury before it was played in full that
"the evidence is in the tape and what you hear, not in the transcript. It will be collected
again afterwards."
Subsequently, during DeWitt's testimony, when the prosecutor asked to play the
CD of her 911 call for the jury, the court stated, "Okay. Would the bailiff please give the
jury the transcripts with the understanding that it's . . . what they hear that's the evidence,
not what you see in the transcript." After confirming it was DeWitt's voice on the CD,
the prosecutor played a second portion of the CD and then stopped it to ask DeWitt some
questions about what had been played. When the prosecutor noticed jurors were
continuing to read the transcript while the CD was stopped, defense counsel asked that
the CD be played at that time in its entirety. The prosecutor then asked for and the court

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22
granted a break so both counsel could listen to the CD before it was played in full to be
sure that there was nothing on it that would cause any problems.
After the break, counsel noted that there was no problem with the CD, and the
remainder of the CD was played for the jury. Subsequently, the court admitted into
evidence the redacted CD of DeWitt's 911 call. The transcript of the 911 call was made a
part of the court record, but not admitted into evidence.
Apparently, during review of the court record for appeal, it was discovered that the
transcript of DeWitt's 911 call had not been redacted in the same manner as had the CD.
Lockman thus contends on appeal that his Sixth Amendment right to a fair trial and
impartial jury was denied when the trial court inadvertently provided the jury with a
transcript of DeWitt's 911 call that included the statement he had been to prison which
was supposed to have been redacted. In light of this record, we conclude the inadvertent
inclusion of the purportedly redacted statement was harmless.
" 'When, as in this case, a jury innocently considers evidence it was inadvertently
given, there is no misconduct.' [Citation.] Rather, all that appears is ordinary error. . . .
[¶] [W]ith ordinary error, prejudice must be shown and reversal is not required unless
there is a reasonable probability that an outcome more favorable to the defendant would
have resulted." (People v. Clair (1992) 2 Cal.4th 629, 668.) In this case, there was no
reasonable probability of a more favorable outcome. Although the transcript given the
jury to aid it in listening to DeWitt's 911 call contained the statement, "He's been to
prison," such statement had been deleted from the CD before being played for the jury.
Thus, the jurors never heard the statement and merely may have seen it in the transcript

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23
that was in their possession while the CD was played. In addition, before the CD was
played, the jurors were reminded by the court of its earlier admonishments regarding the
playing of the two Norquist 911 tapes that it was what they heard in the recording that
was evidence and not what they saw in the transcript being passed out to aid them in
following along with the DeWitt CD.6 We presume the jury followed such instructions.
(People v. Horton (1995) 11 Cal.4th 1068, 1121.)
Moreover, even if the jurors viewed the unredacted statement, it is not probable
that they would have given it any credence because there was no evidence presented at
trial from which to put the statement in context. DeWitt testified she had never seen
Lockman or his truck before the incident and there was no evidence before the jury that
Lockman had any prior convictions or that he had ever been in custody. The mere
reference to prison was brief, not emphasized, and "overshadowed by the considerable
evidence" against Lockman. (See People v. Jackson (1996) 13 Cal.4th 1164, 1214
[passing reference to defendant's probationary status and prior conviction was harmless
error].) Such evidence here included Norquist's and her son's testimony regarding
Lockman rear-ending them with his truck numerous times, physical evidence of damage
to Norquist's car bumper, DeWitt's testimony regarding Lockman's attempts to run her off
the road, his slamming on his brakes in front of her and his pretending to swipe her car,
and Lockman's own incriminating statements overheard on the DeWitt 911 call as well as
6 It appears that all three 911 calls were replayed, without the use of the transcripts,
for the jury during their deliberations.

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24
those made to the investigator of the two road-rage incidents. Therefore, it is not
reasonably probable that the jury's verdicts would have been any different had they not
inadvertently received the unredacted transcript. Lockman has shown neither prejudicial
or federal constitutional error on this record.
IV
CUNNINGHAM/BLAKELY CLAIM
In his supplemental briefing, Lockman contends that the trial court's imposition of
an upper term for his count 1 conviction based on facts not found true by the jury violated
his federal constitutional rights to proof beyond a reasonable doubt, a jury trial, and due
process under Blakely, supra, 542 U.S. 296 and Cunningham, supra, 127 S.Ct. 856. He
argues his failure to object at sentencing to the imposition of an upper term does not
forfeit his claim because an objection would have been futile in light of our Supreme
Court's holding in People v. Black (2005) 35 Cal.4th 1238 (Black) that Blakely did not
invalidate the California DSL sentencing scheme as to the choice of an upper term (id. at
p. 1244), and it was only while his appeal was pending that the high court of the land
issued its decision in Cunningham, which overruled Black and struck down the DSL on
precisely the grounds he now urges. (Cunningham, supra, 127 S.Ct. 856.) Lockman
asserts this court must review such constitutional error to determine whether it was
harmless beyond a reasonable doubt (Washington v. Recuenco (2006) ___ U.S. ___, [126
S.Ct. 2546, 2549] (Recuenco)), and that under such standard, the error cannot be found
harmless because the factors used by the court to impose the upper term were susceptible
to dispute and "had a 'substantial and injurious effect or influence' " on the court's

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25
sentencing decision. (Hoffman v. Arave (9th Cir. 2001) 236 F.3d 523, 541-542; see also
Neder v. United States (1999) 527 U.S. 1, 19.)
In Cunningham, the United States Supreme Court stated, "Contrary to the Black
court's holding, our decisions from Apprendi to Booker point to the middle term specified
in California's statutes, not the upper term, as the relevant statutory maximum. Because
the DSL authorizes the judge, not the jury, to find the facts permitting an upper term
sentence, the system cannot withstand measurement against our Sixth Amendment
precedent." (Cunningham, supra, 127 S.Ct. at p. 871, fn. omitted.) In so holding, the
high court again reaffirmed Apprendi's bright-line rule, that had been reiterated in both
Blakely and Booker, that "[e]xcept 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.' [Citation.]" (Cunningham, supra, 127
S.Ct. at p. 868.)
Although conceding that Cunningham, supra, 127 S.Ct. 856, generally precludes a
trial court from finding facts to impose an upper term sentence and that the middle-term
is the statutory maximum for a valid sentence in California in the absence of jury found
aggravating facts, the People contend Lockman forfeited his Cunningham/Blakely claim
because he failed to object under Apprendi, Blakely or the right to a jury trial at the time
he was sentenced on April 19, 2006, long after Blakely had been decided. The People
assert that even if the issue is reached, there was no Cunningham violation in this case
because the trial court's findings fell under the recidivism exception of Almendarez-

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26
Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), or were based on facts
the jury necessarily found and Lockman admitted.
We agree with the People that Lockman has forfeited his Cunningham/Blakely
issue on appeal for several reasons. First, Blakely, supra, 542 U.S. 296, was filed on
June 24, 2004, almost two years before Lockman's sentencing, which occurred about two
months after Cunningham had been granted certiorari. (People v. Cunningham (April 18,
2005, No. A103501 [nonpub. opn.]), cert. granted sub nom. Cunningham v. California
(Feb. 21, 2006, No. 05-6551) 126 S.Ct. 1329.) Lockman's counsel did not object on
Blakely grounds at sentencing. Generally, issues not raised in the trial court are waived
on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 590 & fn. 6; People v. Hill (2005)
131 Cal.App.4th 1089, 1103.)
Secondly, and more importantly, Lockman is arguing constitutional error based on
a selective reading of the sentencing hearing in which he isolates the court's statement of
reasons for the upper term from the entire context of the hearing in which his counsel
took an active part in the total sentence imposed. In addition to the probation report, two
psychological evaluations, statements in aggravation and mitigation, the court considered
Lockman's motion to dismiss his strike prior. Essentially, defense counsel requested the
court strike Lockman's strike and impose a total eight year term, while the prosecutor
asked for 11 years and the probation officer recommended 15 years which included the
effect of the strike. Lockman's father addressed the court, opining that this case should
not have been charged as a felony and that his son's prior case was really not as serious as
it seemed because he only hit that victim three or four times and the victim was out of the

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27
hospital the very next day. Referring to Lockman's count 1 conviction involving
Norquist, Lockman's father said he could not believe "that a scratch on the bumper could
be boosted to a felony."
The court explained to him that Lockman's behavior was felonious conduct and
that he was enabling Lockman to minimize such conduct and the potential danger to other
people on the road caused by Lockman's angry behavior behind the wheel of a vehicle.
The court also noted that Lockman was "parroting back to the psychologist and
everybody else" the same thing that his father was saying which showed that Lockman
was "not accepting responsibility for what he did; he's not understanding how significant
it is. This is felony conduct. [¶] Anybody who is out on the road, who's angry and
intentionally bumps another car . . . or even acts as if they're going to do it is endangering
everybody else who is out there on the road. That's felony conduct because people can be
killed by it." Nonetheless, the court did not think that 15 years in prison was appropriate
in this case.
After questioning counsel about how to arrive at different sentences and about
earlier plea agreements in the case, the court struck the strike prior and imposed a ten
year total prison term. In doing so, the sentencing judge stated:
"I think this is an extremely serious situation. . . Although there are
times where people do silly things by going to trial, I think in
[Lockman's] position he has a mental condition that is causing him
. . . to not accept responsibility for his behavior. [¶] I'm a little bit in
between on this one. I think I'm going to strike the strike, give him
ten years. He'll do five. That's more my comfort level with what I
see available. . . . It's a lot of time, but it is serious. He needs to
understand that, because unfortunately his family will not always be
there to support him and he is going to have to operate on his [own.]

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28
[¶] Mr. Lockman needs to understand that no matter how angry he
is, he cannot use physical action to try to get even with somebody
and show his anger. It's just not acceptable in society. He can't
afford to do it because of his history. . . . [¶] The way I'm going to
do it is, is strike the strike. The basis for striking the strike is this:
he did successfully complete probation. He had a period of time
where he did stay out of trouble. I think he probably just got a little
complacent about being careful, but for whatever reason, he
obviously got back into this type of a situation which is totally
unacceptable. [¶] For that period of time that he was out of trouble,
he should get credit for that. I'm going to strike that strike. Also,
because I'm required to impose the five-year nickel prior, he's
getting penalized for that in any event. So under that rationale, I'm
comfortable striking the strike. . . . [¶] Second of all, the way I got to
ten years was I have five . . . for the nickel [prior]. And so I have to
come up with five other years. . . ."
With the help of defense counsel, who suggested four years on count 1, and the
prosecutor who agreed it would be an aggravated term on count 1 "and then [one-third]
the midterm on count 5," which defense counsel noted was one year, the court imposed
sentence. The sentencing judge then stated:
"The basis for the upper term has to do with his prior history, that I
think he's not accepted the responsibility. It was extremely
dangerous. The people were vulnerable. Frankly, because there
were two of them and there's a pattern of behavior, there's a certain
sophistication in how he expresses his anger and his frustration.
Although [the psychologist] does explain a lot . . . it's also a
negative. I considered the fact that he was successful on probation
in the past. [¶] I think one of the biggest things is that I think he is a
danger to society because normal everyday stress causes him to do
things he shouldn't be doing, and he acts out violently. I am looking
at the fact that he has a supportive family. I've considered that,
frankly, when striking the strike. In balance, I think that the upper
term is the appropriate term to impose. . . . [¶] I have considered
those factors that the probation officer provided, and then I'm
required to do the second one consecutive. If I wasn't, I still would.
And I would do that because they're separate victims, two separate
instances, and two separate actions on defendant's part, and both

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29
were quite dangerous. . . . [¶] Thus it's the judgment of this Court
that [Lockman] will be imprisoned . . . for a period of ten years."
Because the totality of this sentencing record reveals that defense counsel worked
with the court to have it strike Lockman's strike and impose only a 10-year sentence, we
find it somewhat incongruent for Lockman to now be able to challenge such sentence.
Moreover, even if we concluded Lockman had not forfeited the issue, we would
find no prejudicial Cunningham error. The trial court's statement of aggravating
circumstances reflects great reliance on Lockman's prior criminal history which was the
fact of his prior conviction and falls under the Almendarez-Torres exception as well as
Apprendi. This factor alone is sufficient to impose an upper term. (People v. Osband
(1996) 13 Cal.4th 622, 728-729.) Further, other factors the court used regarding the
multiple victims involved in count 1 and the dangerousness of Lockman's conduct in both
incidents were facts inherent in the jury's verdicts due to their finding that he used his
truck against Norquist and her son in the first incident and against DeWitt in the second
in a manner capable of causing and likely to cause great bodily injury or death. (See
People v. Calhoun (2007) 40 Cal.4th 398, 405-407.) In addition, the court's finding that
Lockman had not accepted responsibility for his crimes was evident in his statements to
the case investigator before his arrest and his statements made to the psychologist and
probation officer after his convictions. The court fully acknowledged Lockman's
mitigating factors and used them to strike his strike. Under these circumstances, any
conceivable Cunningham/Blakely error was harmless. (Recuenco, supra, 126 S.Ct. 2546,
2549.)

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30
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
I CONCUR:
McINTYRE, J.

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Aaron, J., concurring and dissenting:
I agree with the majority that the evidence was sufficient to support Lockman's
conviction for assault with a deadly weapon, that the trial court did not abuse its
discretion in denying Lockman's motion for a new trial, and that the fact that jurors saw
the unredacted transcript of the 911 call does not require reversal. However, I disagree
with the majority's conclusion that Lockman has forfeited his right to challenge on appeal
the trial court's imposition of an upper term sentence. In addition, contrary to the
majority's holding, I would conclude that the trial court erred in relying on factors that
were neither admitted by Lockman nor found by the jury in imposing the upper term.
1. Lockman has not forfeited his right to challenge his sentence
a. Forfeiture of a claim of Blakely1 error
The essence of an allegation of Blakely error is that the defendant was deprived of
his constitutional right to a jury trial on the factors on which the trial court relied in
imposing an upper term sentence. A defendant is not precluded from asserting on appeal
that he was denied his constitutional right to a jury trial, despite a failure to raise the issue
in the trial court. (People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5; see also Cal.
Const. art. I, § 16; People v. Holmes (1960) 54 Cal.2d 442, 443-444 [waiver of the right
to a jury trial must be expressed].) While a claim of Blakely error involves a claim of
only a partial deprivation of the right to a jury trial, I see no reasonable basis for
distinguishing the right to a jury trial on aggravating factors from the right to a jury trial
1 Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

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2
in general, for purposes of determining whether the appellant has forfeited that right. I
would conclude that Lockman's challenge to his upper term sentence is cognizable on
appeal despite his failure to raise the issue in the trial court.
Further, prior to Lockman's sentencing, the California Supreme Court concluded
in People v. Black (2005) 35 Cal.4th 1238, 1244, 1254, 1261 (Black), certiorari granted,
judgment vacated, and cause remanded sub nom. Black v. California (2007) ___U.S.___
[127 S.Ct. 1210], that the imposition of an upper term sentence under California law was
constitutional. In light of Black, any objection Lockman might have made at sentencing
based on Blakely, Apprendi,2 or the United States Constitution would have been futile,
even in view of the fact that the United States Supreme Court granted certiorari in
Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856] (Cunningham) prior to
Lockman's sentencing.
b. Other possible grounds for forfeiture
The majority suggests that Lockman might have forfeited his right to challenge his
sentence because his attorney "worked with the court to have it strike Lockman's strike
and impose only a 10-year sentence." (Maj. opn., ante, at p. 29.) However, at the
sentencing hearing, Lockman's attorney requested that the trial court strike Lockman's
prior strike conviction and impose a sentence of eight years. The prosecutor requested an
11-year sentence, and the probation officer recommended 15 years. It was only after the
court indicated that it intended to impose a sentence of 10 years that defense counsel
2 Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).

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3
"worked with the court" to figure out how the court could arrive at that term. In my view,
this would not constitute a forfeiture of the right to challenge the sentence in this case.
2. The trial court relied on impermissible factors to impose an upper term
sentence
In imposing the upper term for assault with a deadly weapon, the trial court stated,
"The basis for the upper term has to do with [Lockman's] prior
history, that I think he's not accepted the responsibility. It was
extremely dangerous. The people were vulnerable. Frankly,
because there were two of them and there's a pattern of behavior,
there's a certain sophistication in how he expresses his anger and his
frustration . . . I think one of the biggest things is that I think he is a
danger to society because normal everyday stress causes him to do
things he shouldn't be doing, and he acts out violently."
The majority asserts that "[t]he trial court's statement of aggravating circumstances
reflects great reliance on Lockman's prior criminal history which was the fact of his prior
conviction and falls under the Almendarez-Torres [v. United States (1998) 523 U.S. 224
(Almendarez-Torres)] exception as well as Apprendi." (Maj. opn., ante, at p. 29, first
italics added.) In my view, far from relying on the narrow exception in Almendarez-
Torres to impose the upper term, the trial court's statement of factors in aggravation
includes a virtual cornucopia of factors –most of which are not related to a prior
conviction – that were neither admitted by Lockman nor found by the jury. The trial
court erred in relying on such factors to increase Lockman's sentence, under
Cunningham.
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court 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

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4
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) [Booker]. '[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.)

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5
a. None of the aggravating factors on which the trial court relied
is a constitutionally permissible ground for exceeding the statutory
maximum
In this case, as in Cunningham, the trial court imposed an upper term sentence
based on factors that were neither found by the jury nor admitted by Lockman. These
included Lockman's "prior history," that Lockman had not accepted responsibility for his
criminal acts, that his actions were "extremely dangerous," that the victims were
vulnerable, that Lockman exhibited a "pattern of behavior," that the offenses
demonstrated "a certain sophistication," and that Lockman poses a danger to society.
(See Cunningham, supra, 127 S.Ct. at p. 860.) The majority concludes that the sentence
may stand because the trial court relied in large part on Lockman's criminal history in
selecting the upper term, and that this falls within the "Almendarez-Torres exception,"
pursuant to which a court may impose a sentence that exceeds the statutory maximum on
the basis of a defendant's prior conviction. In reaching this conclusion, the majority
construes the Almendarez-Torres exception broadly, to encompass, in my view, far more
than the mere fact of a prior conviction.3
Prior to Cunningham, many courts, including the California Supreme Court, had
construed the Almendarez-Torres exception to apply to more than the mere the fact of a
prior conviction. (E.g., People v. Thomas (2001) 91 Cal.App.4th 212, 221 [agreeing with
3 In imposing the upper term, the trial court referred to Lockman's "prior history,"
not to a prior conviction. However, because the majority asserts that the trial court relied
on Lockman's criminal history, and that this was within the Almendarez-Torres exception
to Apprendi, in this section I discuss the applicability of that exception to this case.

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6
"courts [that] have held that no jury trial right exists on matters involving the more
broadly framed issue of 'recidivism'"]; People v. McGee (2006) 38 Cal.4th 682, 708
[concluding Court of Appeal erred in "narrowly constru[ing] the Almendarez-Torres
exception for recidivist conduct as preserved by Apprendi"]; accord Black, supra, 35
Cal.4th at p. 1269 [construing Apprendi and its progeny only to apply to "offense-based
facts"] (conc. & dis. opn of Kennard, J.).)
However, in Cunningham, the United States Supreme Court clarified the narrow
scope of the Almendarez-Torres exception, and rejected the notion that recidivism related
factors pertaining to a defendant need not be proved to a jury. In his dissent in
Cunningham, Justice Kennedy wrote:
"The Court could distinguish between sentencing enhancements
based on the nature of the offense, where the Apprendi principle
would apply, and sentencing enhancements based on the nature of
the offender, where it would not. California attempted to make this
initial distinction. Compare Cal. Rule of Court 4.421(a) (Criminal
Cases) (West 2006) (listing aggravating "[f]acts relating to the
crime"), with Rule 4.421(b) (listing aggravating "[f]acts relating to
the defendant"). The Court should not foreclose its efforts."
(Cunningham, supra, 127 S.Ct. at p. 872 (dis. opn. of Kennedy, J).)
Nearly all of the "facts relating to the defendant" that Justice Kennedy mentions,
to which California Rules of Court, rule 4.421 (b) refers, are recidivism related factors.
Rule 4.421 (b) provides:
"Facts relating to the defendant include the fact that:
"(1) The defendant has engaged in violent conduct that indicates a
serious danger to society;

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7
"(2) The defendant's prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings are numerous or of
increasing seriousness;
"(3) The defendant has served a prior prison term;
"(4) The defendant was on probation or parole when the crime was
committed; and
"(5) The defendant's prior performance on probation or parole was
unsatisfactory."
The Cunningham majority concluded that, pursuant to Apprendi's "'bright-line
rule'" (Cunningham, supra, 127 S.Ct. at p. 869, quoting Blakely, supra, 542 U.S. at
p. 308), such factors are subject to Apprendi's jury trial requirement:
"Justice KENNEDY urges a distinction between facts concerning the
offense, where Apprendi would apply, and facts concerning the
offender, where it would not. Post, at 872 (dissenting opinion).
Apprendi itself, however, leaves no room for the bifurcated approach
Justice KENNEDY proposes. See 530 U.S., at 490, 120 S.Ct. 2348
('[A]ny 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.' (Emphasis added.))"
(Cunningham, supra, 127 S.Ct. at p. 869, fn. 14, quoting Apprendi,
supra, 530 U.S. at p. 490.)
Before it issued its decision in Cunningham, the United States Supreme Court had
repeatedly referred to the "narrow exception" to Apprendi, provided in Almendarez-
Torres, and did so in a manner that excluded recidivism related factors from its scope.
(Booker, supra, 543 U.S. at p. 244 ["[W]e reaffirm our holding in Apprendi: Any fact
(other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt"]; Blakely,

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supra, 542 U.S. at p. 301 [stating that case requires court to "apply the rule we expressed
in [Apprendi]: 'Other than the fact of 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'"]; Ring, supra, 536 U.S. at p. 597, fn. 4
[describing Almendarez-Torres as holding "that the fact of prior conviction may be found
by the judge even if it increases the statutory maximum sentence"].)
There is nothing in Booker, Blakely, or Ring that would warrant expanding the
"exceptional departure" (Apprendi, supra, 530 U.S. at p. 487) established in Almendarez-
Torres from the "historic practice" outlined in Apprendi, which prohibits the imposition
of a term of punishment greater than that authorized by the jury's verdict. (Apprendi,
supra, 530 U.S. at p. 487.) Accordingly, I would conclude that the United States
Supreme Court's statement that, "[e]xcept 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'" (Cunningham, supra, 127 S.Ct. at p. 868,
quoting Apprendi, supra, 530 U.S. at p. 490), means that courts may consider only the
fact of the defendant having incurred a prior conviction, and not other factors related to
the defendant's prior convictions, in imposing an upper term sentence.
Many of the reasons the Supreme Court offered in Apprendi for distinguishing
Almendarez-Torres apply with equal force to the factors on which the trial court relied to
impose the upper term sentence in this case. (See Apprendi, supra, 530 U.S. at p. 488
["Both the certainty that procedural safeguards attached to any 'fact' of prior conviction,
and the reality that Almendarez-Torres did not challenge the accuracy of that 'fact' in his

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case, mitigated the due process and Sixth Amendment concerns otherwise implicated in
allowing a judge to determine a 'fact' increasing punishment beyond the maximum of the
statutory range"].) Unlike the bare, and admitted, prior convictions at issue in
Almendarez-Torres, Lockman has neither admitted the aggravating factors on which the
trial court relied in this case, nor has a jury determined any of those factors to be true
beyond a reasonable doubt.4
Since none of the aggravating factors on which the trial court relied is the mere
fact of a prior conviction, I would conclude that the court improperly relied on these
factors in imposing an upper term sentence.
b. Even if there is evidence in the record that would provide
a constitutionally permissible ground for exceeding the
middle term, this would not authorize the trial court to rely
on other improper factors in imposing an upper term sentence
The majority asserts that there are other aggravating factors in the record that are
"inherent in the jury's verdicts" (Maj. opn., ante, at p. 29) and also, that "the court's
finding that Lockman had not accepted responsibility for his crimes was evident in his
statements to the case investigator before his arrest and his statements made to the
psychologist and probation officer after his convictions." (Maj. opn., ante, at p. 29.) The
majority concludes that the trial court could properly have relied on such factors to
4 Further, the Cunningham court rejected a primary rationale underlying the
Almendarez-Torres decision, ─ that "recidivism 'does not relate to the commission of the
offense' itself" (Apprendi, supra, 530 U.S. at p. 496, quoting Almendarez-Torres, supra,
523 U.S., at p. 244) ─ as a basis for creating an exception to its holding. (Cunningham,
supra, 127 S.Ct. at p. 869, fn. 14.)

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impose an upper term sentence, and that we may therefore affirm the upper term sentence
in this case.
The difficulty with the majority's position is that it implicitly assumes that the
upper term is the "statutory maximum" (Cunningham, supra, 127 S.Ct. at p. 868) in cases
in which the record reflects the existence of a constitutionally permissible aggravating
factor. (See also Black, supra, 35 Cal.4th at p. 1270 ["the jury's findings pertaining to
defendant's probation eligibility, and the trial court's findings pertaining to defendant's
criminal record, were each sufficient to satisfy this statutory requirement [that there be at
least one aggravating circumstance], thereby making the upper term the statutory
maximum for the offense"] (conc. & dis. opn of Kennard, J.).) However, as Cunningham
makes clear, at the time Lockman was sentenced,5 the statutory maximum under the DSL
was the middle term in all cases, (Cunningham, supra, 127 S.Ct. at p. 868 ["In accord
with Blakely, therefore, the middle term prescribed in California's statutes, not the upper
term, is the relevant statutory maximum"]), because facts inherent in a jury's verdict, a
defendant's admission, or a defendant's prior conviction, were never sufficient under the
DSL to authorize an upper term sentence. Rather, the DSL required that the trial court
specifically find that such facts constituted a circumstance in aggravation before the court
could impose an upper term. (Cunningham, supra, 127 S.Ct. at p. 862 ["In sum,
California's DSL, and the rules governing its application, direct the sentencing court to
5 The Legislature has amended the DSL in response to Cunningham. (Stats. 2007,
ch. 3, § 2, eff. Mar. 30, 2007.)

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start with the middle term, and to move from that term only when the court itself finds
and places on the record facts ─ whether related to the offense or the offender ─ beyond
the elements of the charged offense"], italics added.) Yet, such judicial fact finding is
precisely what Cunningham prohibits.
The existence of a prior conviction, or the existence of a fact found by the jury or
admitted by the defendant upon which the trial court was authorized under the DSL to
impose an aggravated term, did not raise the statutory maximum. Rather, in such a case,
the trial court could sentence a defendant beyond the statutory maximum, and impose an
upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 868, quoting Apprendi, supra,
530 U.S. at p. 490 ["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'"], italics added.) For this reason, I disagree with the
majority's implicit conclusion that under former Penal Code section 1170, subdivision
(b), the upper term became the statutory maximum when the record reflected the
existence of a constitutionally permissible aggravating factor.
3. The error requires reversal
In Washington v. Recuenco (2006) 548 U.S. ____ [126 S.Ct. 2546] (Recuenco),
the United States Supreme Court considered whether a court's imposition of an enhanced
sentence on the basis of a fact not found by the jury, in violation of Blakely, constitutes
structural error necessitating automatic reversal. The Recuenco court held, "Failure to
submit a sentencing factor to the jury, like failure to submit an element to the jury, is not
structural error." (Recuenco, supra, 126 S.Ct. at p. 2553.) Rather, a reviewing court

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must determine whether the prosecution can establish beyond a reasonable doubt that the
jury would have found the fact supporting the enhanced sentence if it had been asked to
do so. (Id. at pp. 2550-2552, citing Chapman v. California (1967) 386 U.S. 18 and Neder
v. United States (1999) 527 U.S. 1.) Since Cunningham is an application of Blakely,
Recuenco governs the determination whether each of the supporting facts upon which the
trial court relied would have been found by the jury.
The majority concludes that the jury would have found beyond a reasonable doubt
both that there were multiple victims and that Lockman's conduct was dangerous.6 It is
clear that the jury would have found beyond a reasonable doubt that there were multiple
victims. However, it is not clear to me that the jury would have found – or that it would
have had any evidentiary basis to find – that Lockman committed the offenses in a
manner that evinced a greater degree of dangerousness than is present in the "usual" case
of assault with a deadly weapon.
6 The majority does not suggest that the jury would have found true the other factors
on which the trial court relied in imposing the upper term sentence. For this reason, I
limit my discussion to the two factors the majority cites.

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4. Conclusion
In imposing the upper term sentence, the trial court relied on a number of
aggravating factors that were neither admitted by Lockman nor found by the jury.
Because it is possible that if the court had not relied on impermissible factors in imposing
the upper term, it might have sentenced Lockman to a different term, I would remand the
case to give the trial court the opportunity to reconsider the sentence in this case.
AARON, J.

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