P. v. Rivera

Filed 4/25/07 P. v. Rivera CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS RIVERA,
Defendant and Appellant.
B187176
(Los Angeles County
Super. Ct. No. BA281996)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
E. Pastor, Judge. Affirmed in part, reversed in part.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and
Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant
Attorney General, Lawrence M. Daniels, Lance E. Winters, Stephanie C. Brenan and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________

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Jesus Rivera appeals from his conviction of attempted murder, assault with a
firearm, and shooting from a motor vehicle. He argues that his conviction for assault
with a firearm should be reversed because that crime is a lesser included offense to the
offense charged in count 3, discharging a firearm from a motor vehicle, and to the offense
charged in count 1, attempted murder. Appellant also argues that the imposition of the
upper terms on counts 2 and 3 and the enhancement on count 2 violated his right to jury
trial under Blakely v. Washington (2004) 542 U.S. 296. We find merit in appellant’s
argument that assault is a lesser included offense to discharging a firearm from a motor
vehicle, but conclude that it is not a lesser included offense to attempted murder as
charged. We also conclude that any error in the imposition of the upper terms on counts
2 and 3 and the enhancement was harmless beyond a reasonable doubt in light of the
factors relating to appellant’s recidivism, as to which there is no right to jury trial.
FACTUAL AND PROCEDURAL SUMMARY
Appellant does not challenge the sufficiency of the evidence to support his
convictions. Accordingly, we provide only a brief factual summary, viewing the record
in the light most favorable to the judgment. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
On April 2, 2005, Isadore Sotelo was in his apartment in Los Angeles. At 2:00 p.m., he
heard someone yelling, “Run. Run as fast as you can.” Sotelo looked out his window
and saw a silver Expedition turn the corner. He saw his cousin, Robert Garcia, try to get
in the front door of his apartment. When Garcia could not get in the door, he jumped
onto some scaffolding and ran down the side of the building. Sotelo recognized the
driver of the silver Expedition as appellant. Sotelo knew that appellant is a member of
the Fraser Maravilla gang.
Sotelo saw appellant pull out a black handgun, point it out of the driver’s window,
and shoot once toward the driveway where Garcia had run. He saw Garcia fall down.
Sotelo came downstairs and found that Garcia had been shot. Appellant drove away.
Garcia suffered a bullet wound to the middle of his back, through his lung. The bullet

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was very close to major blood vessels, the spine, and nerves. He was near death when he
arrived at a hospital, and would have died but for the emergency surgery he received.
Appellant was convicted as charged with attempted premeditated willful, and
deliberate murder (Pen. Code, §§ 187, subd. (a); 6641
(count 1)); assault with a firearm
(§ 245, subd. (a)(2) (count 2)); and discharge of a firearm from a motor vehicle (§ 12034,
subd. (c) (count 3)). The jury found true allegations that appellant committed all three
offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that in the
commission of these offenses he personally inflicted great bodily injury (§ 12022.7, subd.
(a)). The jury also found true firearm use allegations under sections 12022.5, subdivision
(a) and 12022.53, subdivisions (b)-(d). As to each offense, the jury found not true
allegations that appellant personally inflicted great bodily injury which caused the victim
to suffer permanent paralysis under section 12022.7, subdivision (b).
Appellant’s motions for new trial and to dismiss the gang allegations were denied.
He was sentenced to an aggregate sentence of 40 years to life in state prison. This timely
appeal followed.
DISCUSSION
I
Appellant argues that he was wrongly convicted of assault with a firearm because
that crime is a necessarily included lesser offense to discharge of a firearm from a motor
vehicle. He contends that he could not have fired his gun from his car at Garcia without
also committing an assault with a firearm, citing In re Edward G. (2004) 124 Cal.App.4th
962 (Edward G.).
“In California, a single act or course of conduct by a defendant can lead to
convictions ‘of any number of the offenses charged.’ (§ 954, italics added; People v.
Ortega (1998) 19 Cal.4th 686, 692 [80 Cal.Rptr.2d 489, 968 P.2d 48].) But a judicially
created exception to this rule prohibits multiple convictions based on necessarily included
1
All Statutory references are to the Penal Code unless otherwise indicated.

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offenses. [Citations.]” (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) California
courts “have applied two tests in determining whether an uncharged offense is necessarily
included within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test.
Under the elements test, if the statutory elements of the greater offense include all of the
statutory elements of the lesser offense, the latter is necessarily included in the former.
Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading
include all of the elements of the lesser offense, the latter is necessarily included in the
former. (People v. Lopez [(1998)] 19 Cal.4th [282,] 288-289.)” (People v. Reed (2006)
38 Cal.4th 1224, 1227-1228.)
Appellant invokes the statutory elements test in arguing that the assault charge is a
necessarily included lesser offense to discharging a firearm from a motor vehicle.2
Section 12034, subdivision (c) provides: “Any person who willfully and maliciously
discharges a firearm from a motor vehicle at another person other than an occupant of a
motor vehicle is guilty of a felony punishable by imprisonment in state prison for three,
five or seven years.” Section 245, subdivision (a)(2) provides: “Any person who
commits an assault upon the person of another with a firearm shall be punished by
imprisonment . . . .” Section 240 defines assault: “An assault is an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of another.”
In Edward G., supra, 124 Cal.App.4th 962, the appellant fired two shots at the
victim from a car. The juvenile court found appellant had violated section 12034,
subdivision (c) (discharging a firearm from a vehicle) and section 245, subdivision (a)(2)
(assault). The Court of Appeal reversed the assault charge on the ground that it is a
necessarily included lesser offense to the section 12034 violation under the statutory
elements test. The court examined the two statutes and concluded: “These provisions
show that a violation of section 245, subdivision (a)(2), is necessarily included in a
violation of section 12034, subdivision (c). It is not possible to ‘willfully and maliciously
2
This issue is pending before the Supreme Court in People v. Licas, S140032,
review granted March 1, 2006, and People v. Darling, S148460, review granted February
14, 2007.

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[discharge] a firearm’ ‘at another person’ (§ 12034, subd. (c)) without attempting ‘to
commit a violent injury on the person of another’ ‘with a firearm’ while having a ‘present
ability’ to do so (§§ 240, 245, subd. (a)(2)).” (Edward G., supra, 124 Cal.App.4th at
p. 968.)
Edward G. followed People v. Valdez (1985) 175 Cal.App.3d 103 in determining
that the “present ability” element of assault did not change its conclusion. In Valdez, the
defendant was convicted of assault with a firearm after he fired three shots at a gas station
cashier who, unknown to defendant, was protected by a bulletproof window. The Valdez
court rejected the defendant’s argument that the present ability element was not
established because of the bulletproof glass. It concluded: “Nothing suggests this
‘present ability’ element was incorporated into the common law to excuse defendants
from the crime of assault where they have acquired the means to inflict serious injury and
positioned themselves within striking distance merely because, unknown to them,
external circumstances doom their attack to failure.” (Id. at p. 112.) Based on the
reasoning in Valdez, Edward G. held: “We find the reasoning of Valdez persuasive. We
conclude that it follows from Valdez that a person who violates section 12034,
subdivision (c), necessarily has the present ability to commit a violent injury on the
person of another. A violator of section 12034, subdivision (c), has ‘willfully and
maliciously discharge[d] a firearm . . . at another person . . . .’ If a perpetrator is in a
position to fire ‘at’ a person, his or her gun is loaded, and he or she actually discharges it
at the person, then the perpetrator necessarily has ‘maneuvered himself into such a
location and equipped himself with sufficient means that he appears to be able to strike
immediately at his intended victim.’ (People v. Valdez, supra, 175 Cal.App.3d at p. 112
[220 Cal.Rptr. 538].)” (Edward G., supra, 124 Cal.App.4th at p. 969.)
Respondent argues that present ability, “cannot be an element of section 12034,
subdivision (c), because it is possible to willfully and maliciously discharge a firearm
from a motor vehicle at another person without having the present ability to injure that
other person.” It cites In re Daniel G. (1993) 20 Cal.App.4th 239. In that case, the court
concluded that assault with a deadly weapon (§ 245, subd. (a)(1)) is not a lesser and

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necessarily included offense of willfully and maliciously discharging a firearm at an
occupied vehicle (§ 246). Unlike section 12034, subdivision (c), which requires shooting
at a “person,” section 246 punishes shooting at an inhabited dwelling, or occupied
building, vehicle, or other occupied forms of transport or dwelling.3
Section 246 defines
“inhabited” as being used for dwelling purposes, whether occupied or not. The Daniel R.
court concluded that section 246 could be violated by firing into an inhabited but
temporarily unoccupied dwelling, in which case there is no threat of harm to a person.
(20 Cal.App.4th at p. 244.) Daniel G. is distinguishable because both section 12034,
subdivision (c) and section 245 require shooting “at” a person, an element absent from
section 246.
Respondent contends that Edward G. incorrectly analyzed People v. Valdez,
supra, 175 Cal.App.3d 103 and argues: “[A] shooter may intend to shoot a victim, and
may believe he can strike that victim, but it does not follow that the shooter is able to do
so. It is possible to shoot ‘at’ someone without also having an ability to strike the
person.” In support of this argument, respondent posits a situation where a perpetrator is
too far from the intended victim to strike him. It provides an alternative hypothesis based
upon the facts in Valdez in which Valdez, now aware of the bulletproof barrier protecting
the gas station cashier, returns and from his vehicle fires at the cashier to vex or annoy
that person. According to respondent, under this scenario, Valdez would have violated
section 12034, subdivision (c) because he shot “at” the cashier, but would not have
violated section 245, subdivision (a)(2) because he lacked the “present” ability to strike
or inflict injury on the victim.
The Valdez court’s analysis undermines respondent’s reasoning. It distinguished
between “ability” and “possibility,” concluding that ability connotes “a personal
attribute—what a given individual has the capacity to do in contrast with those who lack
3
Section 246 provides in pertinent part: “Any person who shall maliciously and
willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied
motor vehicle, occupied aircraft, inhabited housecar, . . . or inhabited camper, . . . is
guilty of a felony, . . .”

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this quality—not an environmental factor.” (175 Cal.App.3d at p. 111.) “Thus, it
appears quite different in character from the notion of ‘impossibility’ which is defined as
‘[t]he condition or quality of being impossible’ which, in turn, is defined as ‘[n]ot capable
of existing or happening.’” (Ibid.) The court concluded: “The real function of this
‘present ability’ element in common law assault as incorporated in the California statute
is to require the perpetrator to have gone beyond the minimal steps involved in an
attempt.” (Id. at p. 112.) In light of the present ability element, “to be guilty of assault a
defendant must have maneuvered himself into such a location and equipped himself with
sufficient means that he appears to be able to strike immediately at his intended victim.”
(Ibid.) As we have discussed, Valdez concluded that the “present ability” element of
assault does not excuse defendants where they fail to inflict serious injury merely because
of external circumstances. (Ibid.)
We agree with the reasoning of the court in Edward G., supra, 124 Cal.App.4th
962 and conclude that the assault conviction must be reversed because that offense is a
lesser included offense to section 12034, subdivision (c).
II
Appellant also argues the assault conviction should be reversed because assault is
a lesser included offense to attempted murder. He invokes the accusatory pleading rather
than the statutory elements test. Appellant argues that People v. Seel (2004) 34 Cal.4th
535 (Seel) implicitly overruled earlier authority that held that assault with a firearm is not
a lesser included offense to attempted murder. (People v. Wolcott (1983) 34 Cal.3d 92;
People v. Parks (2004) 118 Cal.App.4th 1.)
Appellant’s reasoning is as follows. The firearm allegation under section
12022.53 put appellant in jeopardy for an offense greater than the underlying attempted
murder charge, increasing the sentence from a term of 15 years to life to a term of 40
years to life. Since the allegation exposes appellant to a greater punishment, under
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Seel, supra, 34 Cal.4th 535,
it is the functional equivalent of an element of the offense of attempted murder. To prove
attempted murder as alleged, the district attorney had to prove a specific intent to kill, a

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direct but ineffectual act toward accomplishing the killing, and that appellant personally
and intentionally discharged a firearm causing great bodily injury. To prove the assault
charge, the district attorney had to prove general intent to commit a battery, a foreseeable
consequence of which is the infliction of great bodily injury. From this, appellant argues
that the attempted murder could not have been committed without also committing the
assault with a firearm. This leads to the conclusion that the attempt was a lesser included
offense of the attempted murder as charged, and appellant could not be convicted of both
offenses.
The linchpin of appellant’s analysis is language in Apprendi and Seel that an
enhancement or special allegation that increases a defendant’s exposure to punishment
beyond the maximum sentence for the underlying offense is the functional equivalent of
an element. But neither case arose in the context of lesser included offense analysis.
Apprendi applied the Sixth Amendment to the United States Constitution, holding that
other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the statutory maximum must be tried to a jury and proved beyond a reasonable
doubt. (Apprendi, supra, 530 U.S. at p. 490.) Seel applied Apprendi to conclude that an
allegation of attempted premeditated murder increases the sentence for attempted murder
from a determinate term of five, seven, or nine years to an indeterminate life term with
possibility of parole, and relates to the commission of the offense. As a result, under
Apprendi, it was the functional equivalent of an element of a greater offense than the one
covered by the jury’s guilty verdict. (Seel, supra, 34 Cal.4th at pp. 548-549.) Because
the premeditation allegation placed the defendant in jeopardy of that greater offense, the
Court of Appeal’s determination of evidentiary insufficiency for the premeditation
finding barred retrial of the allegation under the federal double jeopardy clause. (Id. at
p. 550.)
Seel did not address an extension of this analysis to overturn established California
law prohibiting the consideration of enhancements for the accusatory pleading test for
lesser included offenses. Appellant argues that it did so by implication. We find no such
implication. Significantly, two years after Seel was decided, the Supreme Court

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concluded in People v. Reed, supra, 38 Cal.4th 1224 that the accusatory pleading test for
lesser included offenses does not apply in deciding whether multiple convictions are
allowable for single course of conduct. The defendant in that case contended that he was
improperly convicted of being a felon in possession of a firearm in addition to being
convicted for carrying a concealed firearm and carrying a loaded firearm in a public place
because, as charged, the felon in possession charge was a lesser included offense of the
two other charges. The information for each of the three offenses alleged that the
defendant was a convicted felon. As charged, therefore, the defendant could not commit
the other crimes without also being a felon in possession of a firearm.
The Reed court identified the various contexts in which courts must determine
whether one offense is necessarily included in another. A common test is whether a
defendant may be convicted of a lesser uncharged crime. The notice required by due
process is provided as to any lesser offense necessarily committed when the charged
offense is committed. (People v. Reed, supra, 38 Cal.4th at p. 1227.) The court
concluded that the accusatory pleading test “arose to ensure that defendants receive
notice before they can be convicted of an uncharged crime.” (Id. at p. 1229.) “But this
purpose has no relevance to deciding whether a defendant may be convicted of multiple
charged offenses.” (Ibid.) The Reed court concluded: “We see no reason to prohibit
multiple convictions that section 954 permits simply because of the way the offenses are
charged.” (Id. at p. 1230.) It stated “a straightforward overall rule: Courts should
consider the statutory elements and accusatory pleading in deciding whether a defendant
received notice, and therefore may be convicted, of an uncharged crime, but only the
statutory elements in deciding whether a defendant may be convicted of multiple charged
crimes.” (Id. at p. 1231.)4
4
The Supreme Court granted review June 8, 2005 in People v. Sloan, S132605, to
consider “For purposes of the ban on conviction of necessarily included offenses (see
People v. Pearson (1986) 42 Cal.3d 351), should enhancement allegations be considered
in determining when a lesser offense is necessarily included in a charged offense as pled
in the information or indictment?” (Minute, June 8, 2005.)

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We follow Reed, supra, 38 Cal.4th 1224, and conclude that we may not apply the
accusatory pleading test to determine whether assault was a lesser included offense of
attempted murder. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant concedes that it was not a lesser included offense under the statutory elements
test. He has demonstrated no basis for reversal of the assault charge on this ground.
III
Appellant argues that imposition of the high term on counts 2 and 3, and the upper
term on the section 12022.5, subdivision (a) enhancement deprived him of his
constitutional right to have the factors which justify these sentencing choices be
determined by a jury beyond a reasonable doubt. In his opening brief, appellant cited
Blakely v. Washington, supra, 542 U.S. 296 (Blakely) in support of his argument. He
acknowledged that the California Supreme Court in People v. Black (2005) 35 Cal.4th
1238, held that Blakely does not apply to California’s sentencing scheme, but asserted
that Black was wrongly decided. In supplemental briefing, appellant argues that the
recent opinion in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]
(Cunningham) compels reversal of those upper terms.5
The trial court imposed the upper term on counts 2 and 3 based on the same
aggravating factors: appellant’s extensive criminal history involving crimes of violence
and guns; a number of offenses of increasing seriousness; appellant’s danger to society;
his failure to perform well on probation in the past; his prior prison term; the
premeditation and planning of the present offense; and the callous and vicious nature of
the attempted execution of the present offense. As to the gun allegation under section
12022.5, subdivision (a) on count 2, the court chose the upper term because appellant not
only displayed a firearm, but fired it at a vulnerable area of the victim.
5
On February 7, 2007, the Supreme Court granted review in five cases to address
the impact of Cunningham. (People v. Sandoval, S148917; People v. Mvuemba,
S149247; People v. French, S148845; People v. Hernandez, S148974; and People v.
Pardo, S148914.)

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In Cunningham, the Supreme Court held that California’s determinate sentencing
law, which gives the trial court judge rather than the jury the authority to find facts which
expose a defendant to an elevated upper term sentence, violates a defendant’s right to
jury trial protected by the Sixth and Fourteenth Amendments to the United States
Constitution. (Cunningham, supra, 549 U.S. __, [127 S.Ct. at pp. 860, 868].) It held that
the California determinate sentencing law “violates Apprendi’s bright-line rule: 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. at p. 868, quoting Apprendi v. New Jersey, supra, 530 U.S. 466,
490.)
Appellant argues the trial court’s imposition of the upper term based on facts not
found by a jury constituted error. He also contends the trial court’s findings were made
under an incorrect standard of proof—a preponderance of the evidence—rather than the
beyond a reasonable doubt standard mandated by Cunningham and Apprendi. He
acknowledges that the United States Supreme Court has not yet determined whether this
error is subject to harmless error analysis. Appellant argues that under the harmless error
test set forth in Chapman v. California (1967) 386 U.S. 18, reversal is required since the
jury did not find beyond a reasonable doubt all facts relied upon by the trial court in
imposing the upper terms. He contends that it cannot be concluded that the jury would
have found true all the factors relied upon by the trial court judge. He asks that we
reverse the sentence and impose the middle term on counts 2 and 3 and on the
enhancement under section 12022.5, subdivision (a). Alternatively, he asks us to remand
the case to the superior court for resentencing to the midterm on these counts and the
enhancement.
We asked respondent to submit a letter brief in response to the supplemental brief
from appellant. Respondent did so and contends that the point was forfeited because
appellant failed to raise a Blakely issue at sentencing, although he was sentenced nearly
18 months after that case was decided. In anticipation of this argument, appellant argues
that an objection would have been futile since he was sentenced after the California

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Supreme Court decision in People v. Black, supra, 35 Cal.4th 1238, that Blakely does not
apply to California upper term sentencing. We need not decide the forfeiture issue.
Assuming, without deciding, that it does not apply, Blakely does not aid appellant.
Respondent argues that there was no error because appellant’s prior prison term
established recidivism, a proper basis for imposition of the upper term without a jury
determination, citing Almendarez-Torres v. United States (1998) 523 U.S. 224 and
Cunningham, 127 S.Ct. at pages 860, 864. In addition, respondent cites a line of
California cases for the proposition that no jury trial right exists on matters involving
issues of recidivism.6
In People v. McGee (2006) 38 Cal.4th 682, the Supreme Court decided that a
defendant does not have a federal constitutional right to have the jury rather than the
court examine the record of a prior criminal proceeding to determine whether an earlier
conviction subjects the defendant to an increased sentence. (Id. at p. 686.) The issue in
McGee was whether the defendant’s Nevada robbery convictions qualified as serious
felony convictions for purposes of California’s “Three Strikes” law. Because of
differences between California and Nevada law as to the elements of robbery, the record
6
The Supreme Court granted review July 14, 2004 in People v. Towne, S125677.
After Cunningham was decided, the Supreme Court requested additional briefing on the
following issues: “(1) Do Cunningham v. California, supra, and Almendarez-Torres v.
United States[,supra,] 523 U.S. 224, 239-247, permit the trial judge to sentence defendant
to the upper term based on any or all of the following aggravating factors, without
submitting them to a jury: the defendant’s prior convictions as an adult are numerous and
of increasing seriousness; the defendant has served a prior prison term; the defendant was
on parole when the crime was committed; the defendant’s prior performance on probation
or parole was unsatisfactory ([Cal.] Rules of Court, rule 4.421[(b)(2)-(b)(5)])? [¶] (2) Is
there any violation of the defendant’s Sixth Amendment rights under Cunningham v.
California, supra, if the defendant is eligible for the upper term based upon a single
aggravating factor that has been established by means that satisfy the governing Sixth
Amendment authorities—by, for example, a jury finding, the defendant’s criminal
history, or the defendant’s admission—even if the trial judge relies on other aggravating
factors (not established by such means) in exercising his or her discretion to select among
the three sentences for which the defendant is eligible?” (S.Ct. dock. entry of 2/7/07.)

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of the Nevada proceedings had to be examined in order to determine whether they were
qualifying convictions.
The McGee court cited the following discussion in Apprendi distinguishing
recidivism from other factors used to enhance punishment: “(1) recidivism traditionally
has been used by sentencing courts to increase the length of an offender’s sentence, (2)
recidivism does not relate to the commission of the charged offense, and (3) prior
convictions result from proceedings that include substantial protections. (Apprendi,
supra, 530 U.S. 466, 487-488, citing Jones v. United States (1999) 526 U.S. 227 [143
L.Ed.2d 311, 119 S.Ct. 1215], and Almendarez-Torres, supra, 523 U.S. 224; see also
Monge v. California (1998) 524 U.S. 721, 728 [141 L.Ed.2d 615, 118 S.Ct. 2246] [the
question whether the defendant’s prior conviction for assault with a deadly weapon
involved personal use was a sentencing determination that fell within the Almendarez-
Torres exception for recidivist behavior and therefore was not subject to double jeopardy
protections]; People v. Seel, supra, 34 Cal.4th 535, 548 [21 Cal.Rptr.3d 179, 100 P.3d
870] [‘The high court has made clear that recidivism is different for constitutional
purposes.’].)” (People v. McGee, supra, 38 Cal.4th at pp. 698-699.)
The McGee court distinguished “between sentence enhancements that require fact-
finding related to the circumstance of the current offense, such as whether a defendant
acted with the intent necessary to establish a ‘hate crime’—a task identified by Apprendi
as one for the jury—and the examination of court records pertaining to a defendant’s
prior conviction to determine the nature or basis of the conviction—a task to which
Apprendi did not speak and ‘the type of inquiry that judges traditionally perform as part
of the sentencing function.’” (People v. McGee, supra, 38 Cal.4th at p. 709, quoting
People v. Kelii (1999) 21 Cal.4th 452, 456.)
People v. Thomas (2001) 91 Cal.App.4th 212 is instructive. Thomas did not
personally waive jury trial on two prior prison term allegations. The trial court found the
prior term allegations true and imposed an increased sentence based on those
enhancements. Thomas argued he was denied a jury trial on the prior prison term
allegations in violation of Apprendi because the prior prison term was beyond the

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language in Apprendi, which held that other than the fact of a prior conviction, the jury
must determine the basis for an increase in sentence beyond the statutory maximum. The
Thomas court rejected this argument, citing cases from other jurisdictions interpreting
Apprendi as applying to matters relating to recidivism beyond the precise fact of a prior
conviction. (Id. at p. 221.) It concluded that Apprendi had not overruled Almendarez-
Torres, which is controlling. It reasoned that the Apprendi language refers “broadly to
recidivism enhancements which include section 667.5 prior prison term allegations.” (Id.
at p. 223.) There were documents in Thomas that demonstrated without dispute that he
had served two separate prison terms. (Id. at p. 223.)
Here, the trial court imposed the upper terms based on a number of factors, nearly
all of which relate to appellant’s recidivism. A review of the probation report establishes
that appellant’s adult history began with a misdemeanor conviction for theft in 1994 for
which he received probation. The next year he was convicted of giving false
identification to the police (§ 148.9) and was given probation. In 1998, he served six
days in jail for possession of marijuana. The same year, he was convicted of corporal
injury on a spouse for which he served time in jail and was placed on probation. Also in
1998, appellant twice was arrested and later convicted for driving with a suspended
license and placed on probation. In 1999, appellant again was convicted of driving with a
suspended license. He violated probation on that offense. (Veh. Code, § 14601.1, subd.
(a).) In 1999, he was convicted of being intoxicated in public. Attempted murder
charges were dropped when appellant was convicted of a firearm offense and sentenced
to state prison in 2000.
Appellant’s adult record established his extensive criminal history involving
crimes of violence and guns, a number of offenses of increasing seriousness, his failure to
perform satisfactorily on probation, and his prior prison term. These factors all relate to
his recidivism. The trial court also relied on appellant’s danger to society. In light of
appellant’s criminal history, we conclude that this factor did not require additional
factfinding by the trial court. Under Apprendi and McGee, factors relating to recidivism
do not require a jury determination.

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The trial court also relied upon factors related to the present crime: premeditation
and planning, and the callous and vicious nature of the present offense. Any error in
relying on these factors is harmless in this case. We are satisfied beyond a reasonable
doubt that the court would have sentenced defendant to the upper terms based solely on
its findings concerning appellant’s criminal record. (Washington v. Recuenco (2006) __
U.S. __ [126 S.Ct. 2546].)
We note that the abstract of judgment reflects enhancements on count 2 for section
12022.53, subdivision (a)(1) and section 12022.7, subdivision (a). Appellant was not
charged with an enhancement pursuant to section 12022.53 on count 2. But the point is
moot in light of our reversal of the conviction on that count.
DISPOSITION
The conviction for assault in count 2 is reversed and the trial court is directed to
correct the abstract of judgment on that count. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.

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