P. v. Banegas

Filed 11/9/07 P. v. Banegas CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS MANUEL BANEGAS,
Defendant and Appellant.
B193283
(Los Angeles County
Super. Ct. No. VA084675)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Larry S. Knupp, Judge. Affirmed.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M.
Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
______________

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Carlos Manuel Banegas1 appeals from the judgment entered upon his convictions
by jury of second-degree murder (Pen. Code, § 187, subd. (a), count 1), felony hit-and-
run (Veh. Code, § 20001, subd. (a) count 2),2 driving under the influence causing injury
(§ 23153, subd. (a), count 3), driving under the influence of more than 0.08 percent
alcohol (§ 23153, subd. (b), count 4), and gross vehicular manslaughter while intoxicated
(Pen. Code, § 191.5, subd. (a), count 5). In connection with counts 3 through 5, appellant
admitted suffering two prior drunk driving convictions within the meaning of section
23566, subdivisions (b) and (c) and Penal Code section 191.5, subdivision (d). The trial
court sentenced him to the upper term of four years on his conviction in count 2 plus a
consecutive term of 15 years to life on his conviction in count 1. Imposition of sentence
on counts 3 through 5 was stayed pursuant to section 654. Appellant contends that (1)
there is insufficient evidence to support his convictions of second degree murder, hit-and-
run and gross vehicular manslaughter, (2) the trial court gave erroneous causation
instructions to the jury, thereby depriving him of due process and a fair trial, and (3) the
upper term sentence on his felony hit-and-run conviction violates the Sixth and
Fourteenth Amendments to the United States Constitution as set forth in Cunningham v.
California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham), compelling reduction of the
sentence to the midterm.
The judgment is affirmed.
FACTUAL BACKGROUND
We review the evidence in accordance with the usual rules on appeal. (People v.
Autry (1995) 37 Cal.App.4th 351, 358.) On July 12, 2004, at approximately 11:00 p.m.,
Sean Tackett was driving south in the number one (fast) lane of the 710 freeway, near
Firestone Boulevard, at 70 to 75 miles per hour. He saw a white Chevy Camaro in the
1 Appellant is also known as Oscar Espinosa, Lorenzo German, Loreto German
Lopez, Lorento German Lopez, Compa Lopez, German Lopez, Oscar Jerman Pompa, and
German Compa.
2 All further statutory references are to the Vehicle Code unless otherwise indicated.

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number four (slow) lane pass him, with its lights on, traveling 90 to 95 miles per hour. A
Honda Civic traveling 70 miles per hour, four car lengths ahead of the Camaro, placed its
turn signal on and merged in front of the Camaro. The Camaro did not slow down.
When it was a foot or two behind the Civic, it swerved to the left to avoid hitting it,
nearly hit two other cars and crashed into the center divider. It came to rest 80 percent in
the fast lane and 20 percent on the shoulder. Tackett pulled over and stopped. The
Camaro’s headlights were then off and its hazard lights did not come on.
Twenty to 30 seconds later, Tackett saw a motorcycle in the fast lane strike the
driver’s side, rear panel of the Camaro and the rider, wearing a helmet, “fly[] through the
air and hit the pavement.” Five to 10 minutes later, Tackett saw appellant exit the
Camaro and walk past the motorcyclist toward the freeway exit. Tackett detected a
strong smell of alcohol as appellant walked by him.
Appellant walked south on the freeway toward Gregory Boagni, an off-duty Los
Angeles County sheriff’s deputy, who saw appellant hit the center divider, stopped his
car and called 911. Boagni testified that he saw appellant walk south, past the downed
motorcyclist, without stopping. Appellant approached Boagni a minute or so after the
Camaro had hit the divider. Boagni smelled alcohol on his breadth. Appellant walked
past him and, when asked, said he did not need medical attention and was going home.
Boagni showed appellant his badge and told him to stay. Appellant complied and was
handcuffed. He did not offer his license number, registration or assistance. Boagni
turned him over to California Highway Patrol (CHP) officers when they arrived.
CHP Officer Horacio McComb responded to the scene. He observed the Camaro
with its front end “smashed,” in the number one lane, parallel to the center median, facing
north. A motorcycle was in the number two lane. The motorcyclist, Jack Bush, was
being attended to by others, so Officer McComb attended to appellant, who identified
himself as Carlos Banegas. While it was apparent that English was not appellant’s native
language, Officer McComb spoke to him in English, and appellant appeared to
understand. Appellant was unsteady on his feet, his breadth smelled of alcohol, his eyes
were red and watery, and his speech was slow and slurred. He told Officer McComb that

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he had consumed six Bud Lights, between 5:00 p.m. and 10:00 p.m., and showed him a
photocopy of his driver’s license.
Officer McComb administered several field sobriety tests to appellant, who failed
two of them and could not perform two others, claiming he had been shot in the ankle
years earlier. Officer McComb also administered two preliminary alcohol screening tests
(PAS) which revealed that appellant had a blood alcohol level of .106 and .105 percent.
Approximately an hour and 20 minutes after the initial radio call, appellant underwent a
blood alcohol test which reflected a blood alcohol level of 0.08 percent. The officer
concluded appellant was driving under the influence and arrested him. Unaware that the
motorcycle had hit the Camaro, the officer cited appellant for driving under the influence
and driving with a blood-alcohol level above 0.08 percent, but not for driving under the
influence causing injury. His report stated that the cause of the accident was “other than
driver.”
Officer McComb spoke with Bush the night of the accident. Bush was coherent,
and the officer did not expect him to die. But the parties stipulated that “four days after
the accident on July 16 . . . [he] died as a result of death from severe head injuries.” This
was the only evidence of Bush’s physical condition.
Officer Levi Miller investigated the case. He found the Camaro’s shifter in the
reverse position and, while the hazard lights on the Camaro were operative, the
emergency activation button was in the off position. He concluded that the front tire of
the motorcycle struck the driver’s side of the Camaro. There was no evidence the
Camaro was hit by any other vehicle. Officer Miller did not try to start the Camaro,
although he knew appellant claimed he tried to move it but could not. He found that
Bush’s helmet was cracked down the middle. Officer Miller testified that speeding,
failing to turn on one’s hazard lights after an accident, tailgating and making an unsafe
lane change are Vehicle Code violations.
A criminalist from the Sheriff’s Department testified that a person of appellant’s
size with a blood alcohol level of 0.08 percent is impaired to safely operate a car.

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On August 17, 2004, appellant was arrested for another incident of driving under
the influence. On that occasion, he identified himself as Oscar Espinosa. After this
arrest, Officer Miller, who had been unable to locate appellant, did so and conducted an
audio-recorded interview with him, where appellant again identified himself as Oscar
Espinosa. Appellant said that he never had a driver’s license. He acknowledged having a
drinking problem and knowing that drunk driving is dangerous and kills people. He
could not recall how many prior drunk driving arrests he had had.
Appellant described the collision, stating that he had consumed a 12-pack of beer
between 7:00 p.m. and 11:00 p.m. He was driving in the number three lane when a trailer
cut him off, and he lost control of his vehicle. As other cars were hitting each other, he
turned left and hit the wall. He tried to move the car to the side, but it would not start.
He did not turn on the emergency lights because a motorcycle crashed into the side of his
car, and he was scared for the person lying there. Appellant said that he believed the
accident would not have occurred if he had not been drinking. He said he tried to get
help for the motorcyclist, but an African-American police officer on the scene told him
that the motorcyclist was fine, did not want to help, and arrested him.
Appellant also said that his real name was Lorenzo or Loreto Lopez or Lorenzo
German, but that he used Carlos Banegas and Banegas’s driver’s license in the accident
“to avoid problems.” He used the name Oscar Espinosa when arrested on August 17
because the name Carlos Banegas was “burned by the accident.” Appellant was recently
arrested in Ventura for failing to attend court-ordered alcohol abuse classes. He claimed
he did not have enough money for the classes, but that he had completed such a class in
1996. He was also ordered to, but apparently did not, attend alcohol abuse classes after
arrests in 2000, 2002, and 2004.
DISCUSSION
I
Sufficiency of Evidence
Appellant contends that there is insufficient evidence to support his convictions of
murder, hit-and-run and gross vehicular manslaughter. He argues that there was

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inadequate evidence of causation, implied malice and failure to perform statutory duties.
This contention is meritless.
“In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in
favor of the verdict, and indulge every reasonable inference the jury could draw from the
evidence. (People v. Autry, supra, 37 Cal.App.4th at p. 358.) Reversal on this ground is
unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence
to support [the conviction].’” (People v. Bolin, supra, at p. 331.)
A. Causation
Appellant argues that there were no medical records or medical testimony
presented regarding Bush’s physical condition at the scene of the accident, at the hospital
or regarding any autopsy, to establish that the accident caused his death. The stipulation
that, “Bush died following severe head injuries suffered in the accident,” did not establish
that those head injuries were incurred in the crash. We find the evidence to be sufficient.
To establish criminal culpability for murder, the prosecution must prove that a
defendant’s actions proximately caused the death. (See People v. Roberts (1992) 2
Cal.4th 271, 315; People v. Harrison (1959) 176 Cal.App.2d 330, 345, disapproved on
other grounds in People v. Whitehorn (1963) 60 Cal.2d 256, 264.) To constitute the
proximate cause of a death, “the cause of the harm not only must be direct, but also not
so remote as to fail to constitute the natural and probable consequence of the defendant’s
act.” (People v. Roberts, supra, at p. 319, italics added.)
While medical evidence would have more clearly tied Bush’s severe head injuries
to the accident, we cannot say that the evidence presented was insufficient to allow the
jury to draw that causal connection. Appellant’s car was stopped in the fast lane of the
freeway. Bush’s motorcycle struck it while traveling 70 miles per hour. He was thrown
through the air and hit the pavement. Paramedics treated him at the scene and brought

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him to the hospital, where he died four days later of “severe head injuries.” The helmet
he wore at the time of the accident was cracked down the middle. It can be reasonably
inferred from this evidence that Bush suffered the “severe head injuries” in the accident
that the parties stipulated caused his death. There was no evidence or argument at trial
that Bush had preexisting head injuries or that something happened after the accident to
cause his death. The significance of this evidence was for the jury to evaluate.
B. Malice
Appellant argues that there was insufficient evidence of implied malice to support
his conviction of second degree murder because there was no evidence that his acts were
intentional and done with conscious disregard for human life. He tried to start the car in
order to move it out of the fast lane, showing his concern. He asserts that the prosecution
is bound by its presentation of his statement as to how the killing occurred in the
“‘absence of proof to the contrary.’”
Second degree murder is the unlawful killing of a human being with malice
aforethought, but without the additional element that it be willful, deliberate and
premeditated, which is required for first degree murder. (Pen. Code, §§ 187, subd. (a),
189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) Malice may be express or
implied. (Pen. Code, § 188; People v. Nieto Benitez, supra, at p. 102.) Express malice is
manifested when there is a “deliberate intention unlawfully to take away the life of a
fellow creature.” (Pen. Code, § 188.) Implied malice exists when an intentional act
naturally dangerous to human life is committed “‘by a person who knows that his conduct
endangers the life of another and who acts with conscious disregard for life.’” (People v.
Lasko (2000) 23 Cal.4th 101, 107; People v. Martinez (2003) 31 Cal.4th 673, 684; Pen.
Code, § 188.) It is determined by examining the defendant’s subjective mental state to
see if the defendant actually appreciated the risk of his actions. (People v. Dellinger
(1989) 49 Cal.3d 1212, 1217; People v. Watson (1981) 30 Cal.3d 290, 296-297.) Implied
malice may be proven by circumstantial evidence. (People v. James (1998) 62
Cal.App.4th 244, 277.)

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Vehicular homicide committed while intoxicated may be found to be second
degree murder rather than vehicular manslaughter. The applicable law is set forth in
People v. Watson (1981) 30 Cal.3d 290 (Watson). There, the defendant drove to a bar
and consumed large quantities of beer. Thereafter, he drove through a red light, avoided
a collision only by skidding to a halt, drove up to a speed of 84 miles per hour, and
slowed only to 70 miles per hour at an intersection where he struck a car, killing two
people. The defendant’s blood alcohol level one-half hour after the collision was 0.23
percent. The trial court dismissed two counts of second degree murder. The California
Supreme Court reversed the dismissal order, holding that there was sufficient evidence of
second degree murder. (Id. at pp. 292-294.) It explained that a vehicular homicide
committed while intoxicated involves implied malice, and is thus second degree murder,
if “a person, knowing that his conduct endangers the life of another, nonetheless acts
deliberately with conscious disregard for life.” (Id. at p. 296.) “‘One who willfully
consumes alcoholic beverages to the point of intoxication, knowing that he thereafter
must operate a motor vehicle, thereby combining sharply impaired physical and mental
faculties with a vehicle capable of great force and speed, reasonably may be held to
exhibit a conscious disregard of the safety of others.’” (Id. at pp. 300-301.)
Here, appellant consumed a 12-pack of beer before driving home. His PAS tests
measured .106 and .105 percent, exceeding the legal limit, and a blood alcohol test taken
approximately an hour and a quarter later still showed a 0.08 percent blood-alcohol
reading. While unquestionably impaired, he entered his car and, not only drove 90 to 95
miles per hour on the freeway dangerously tailgating, but did so in the slow lane. These
intentional acts were unquestionably dangerous to human life.
The evidence was also sufficient to support a finding that appellant acted in
conscious disregard for life. He had several prior drunk driving convictions which alone
should have made him aware of its dangers. (See People v. Autry, supra, 37 Cal.App.4th
at p. 359.) He had attended alcohol abuse classes, which even more emphatically would
have driven home the life-threatening dangers of drunk driving. In his interview by
police, he said he knew he had an alcohol problem and that drunk driving can kill. He

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had recently been arrested in Ventura County for failing to attend court ordered alcohol
abuse classes which, as the trial court noted, had he attended might have averted the
charged collision. After his vehicle was hit by Bush’s motorcycle, he further reflected his
conscious disregard for life, walking right by his victim with little concern for his
condition. It was for the jury to decide under these circumstances whether he acted with
implied malice. (People v. Ricardi (1990) 221 Cal.App.3d 249, 259-260.)
Appellant argues that after the accident he remained in his car and tried to move it
out of the traffic lane, reflecting his lack of malice. Even if we accept that appellant tried
to move his car out of traffic lanes, that does not mitigate the conscious disregard he
showed by drinking and driving, thereby placing himself in that precarious position in the
first place.
C. Required duties
The Vehicle Code imposes numerous duties on drivers of vehicles involved in
accidents resulting in death or injury. As pertinent here, those include the duty to (1)
immediately stop the vehicle at the accident scene, (2) give his and the vehicle owner’s
name, current residence address, and the registration number of the vehicle he or she is
driving to the person struck, to the driver or occupants of any vehicle collided with and to
any traffic or police officer at the scene, and (3) ascertain what assistance any injured
person required and render reasonable assistance to that person. (§§ 20001, subd. (a);
20003; People v. Scheer (1998) 68 Cal.App.4th 1009, 1028.)
Appellant argues that there was insufficient evidence that he willfully failed to
perform his statutory duties to support his hit and run conviction. He argues that he
stopped at the scene and did not give the required information to the victim only because
he sought help from Boagni and Tackett, but gave the information to the CHP officer
when requested.
While appellant self-servingly selects the facts he presents in support of this claim,
he ignores those facts which support the jury’s verdict. Appellant stopped his car only
because it had become disabled after crashing into the center divider. There was
evidence that he had no intention of performing his statutory duties. He walked past the

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downed motorcyclist, past Tackett, and past Boagni without providing or attempting to
provide assistance or information, telling Boagni, he was going home. He only remained
at the scene when Boagni ordered him to do so and showed him his badge. The only time
appellant provided information was when he showed a copy of a driver’s license to
Officer McComb. But appellant stated in his interview that this was not his driver’s
license, and he was not Carlos Banegas. Thus, even if providing information after
attempting to leave the scene could be viewed as compliance with the statutes, appellant
did not provide true information.
II
Erroneous Jury Instructions
The trial court instructed the jury in accordance with CALJIC No. 3.40, as
follows: “To constitute the crime of second degree murder and gross vehicular
manslaughter while intoxicated there must be in addition to the death an unlawful act
which was a cause of that death. The criminal law has its own particular way of defining
cause. A cause of the death is an act that sets in motion a chain of events that produces as
a direct, natural and probable consequence of the act the death and without which the
death would not [have] occur[red].”
It also instructed in accordance with CALJIC No. 3.41 as follows: “There may be
more than one cause of the death. When the conduct of two or more persons contributes
concurrently as a cause of the death, the conduct of each is a cause of the death if that
conduct was also a substantial factor contributing to the result. A cause is concurrent if it
was operative at the moment of the collision and acted with another cause to produce the
death. If you find that the defendant’s conduct was a cause of death, to another person,
then it is no defense that the conduct of some other person contributed to the death.”
(Italics added.)
Appellant contends that the trial court erred in giving these instructions. He
argues that the second paragraph of CALJIC No. 3.40 is erroneous because it “misleads
the jury into adopting a strict liability analysis of causation. That is, the jury was
instructed that, if it found a direct, chain of events between appellant’s act and Mr.

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Bush’s death, it was required to find that appellant’s act was the proximate cause of Mr.
Bush’s death,” even though not all factors in causing death are proximate causes.
Appellant also argues that the second sentence of the first paragraph of CALJIC No. 3.41
“is erroneous because it defined a cause as concurrent ‘if it was operative at the moment
of the collision and acted with another cause to produce the death.’ This is an incorrect
statement of law which lightened the prosecution’s burden of proof. This incorrect
statement of law allowed the jury to find appellant strictly culpable based on his collision
with the center divider.” Additionally, he asserts, there was no evidence of concurrent
causes, and therefore CALJIC No. 3.41 should not have been given. We conclude that
giving these instructions resulted in no prejudicial error.
A. CALJIC No. 3.40
Contrary to appellant’s assertion, CALJIC No. 3.40 does not provide strict liability
analysis of causation. Rather, it provides that an act is a proximate cause of death only
when it sets in motion a chain of events that operates directly to cause the death which is
a natural and probable consequence of the act. Only acts without which the death would
not occur can be a proximate cause. This definition of proximate cause is derived from
our Supreme Court’s decision in People v. Roberts (1992) 2 Cal.4th 271, 319, which
states: “The criminal law thus is clear that for liability to be found, the cause of the harm
not only must be direct, but also not so remote as to fail to constitute the natural and
probable consequence of the defendant’s act.” (Italics added.) Relying upon this
language, our Supreme Court and some appellate courts have approved CALJIC No.
3.40. (People v. Cervantes (2001) 26 Cal.4th 860, 866 [citing with approval and quoting
CALJIC No. 3.40]; see also People v. Temple (1993) 19 Cal.App.4th 1750, 1756
[explicitly holding that CALJIC 3.40 correctly states proximate cause definition, and
cited with approval in People v. Bland (2002) 28 Cal.4th 313, 335].) “Ordinarily the
question [of proximate cause] will be for the jury . . . .” (People v. Roberts, supra, at p.
320, fn. 11.) Given these compelling authorities, we see no reason to revisit this
question.

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B. CALJIC No. 3.41
We agree with appellant that there was no evidence to support this instruction.
The evidence only indicated that appellant’s drunk and erratic driving led directly to the
collision with the center divider and the natural and probable consequence that the
Camaro would be hit by fast moving traffic, including Bush’s motorcycle. A trial court
must “‘refrain from instructing on principles of law which . . . are irrelevant to the issues
raised by the evidence.’” (People v. Saddler (1979) 24 Cal.3d 671, 681.) It is error to
give an instruction that correctly states a principle of law that is inapplicable to the facts
of the case. (People v. Eggers (1947) 30 Cal.2d 676, 687; People v. Anderson (1965) 63
Cal.2d 351, 360.) We also agree that CALJIC No. 3.41, as given, should have defined
concurrent causes as those operating at the time of death, not at the time of the collision.
(People v. Sanchez (2001) 26 Cal.4th 834, 847 [“‘“A cause is concurrent if it was
operative at the time of death and acted with another cause to produce the death”’”].)
We nonetheless find that the error in giving CALJIC No. 3.41 was harmless, as it
was not reasonably probable that if it were not given, or if it were corrected, a verdict
more favorable to appellant would have resulted. (People v. Palmer (2005) 133
Cal.App.4th 1141, 1157 [misdirection of the jury, including incorrect, ambiguous,
conflicting, or wrongly omitted instructions that do not amount to federal constitutional
error, are reviewed under People v. Watson (1956) 46 Cal.2d 818, 836].) There is little
chance that giving CALJIC No. 3.41 would have misled the jury, as there was no
evidence of any cause operating at the time of Bush’s death that was not operating at the
time of the collision. Furthermore, CALJIC No. 3.41 correctly instructed the jury that
appellant was not absolved of responsibility for Bush’s death if the conduct of another
was also a substantial or contributing factor to the death. We fail to see how an
instruction suggesting that there might be a concurrent cause of death would prejudice
appellant as, by its terms, it would not affect his liability for the death. Additionally, the
evidence of appellant’s guilt is strong. It was undisputed that he was intoxicated, that he
drove recklessly as a result, that he hit the center divider and that the motorcycle hit him
because he came to a stop in the fast lane.

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III
Cunningham Error
On August 14, 2006, the trial court sentenced appellant to the upper term of four
years on his conviction in count 2 of felony hit-and-run and to 15 years to life on count 1
for second degree murder. It stayed imposition of sentence on the remaining counts. The
trial court found as aggravating factors that appellant (1) was on probation at the time of
the offense, (2) had pending arrest warrants for failure to attend alcohol classes, (3) drove
his vehicle knowing he was intoxicated, (4) committed a serious crime, and (5) his prior
performance on probation or parole was unsatisfactory. It found no mitigating factors.
Appellant contends that, under the dictates of Cunningham, the upper term
sentence on count 2 violated the Sixth Amendment right to a jury trial and the Fourteenth
Amendment right to proof beyond a reasonable doubt of aggravating factors used to
support that sentence. He requests that his sentence be reduced to the middle term.
Respondent contends that appellant’s Cunningham claim was forfeited by his failure to
raise it in the trial court. We conclude that appellant has not forfeited the claim, but that
it is without merit.
A. Forfeiture
In the recent case of People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), our
Supreme Court resolved the forfeiture question now before us. In that case, as here, the
trial and sentencing proceedings took place after the United States Supreme Court’s
decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and the California
Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), but before
Cunningham. Sandoval concluded that the claim was not forfeited because the decision
in Black I, in which our Supreme Court held that the California determinate sentencing
law (DSL) did not implicate the Sixth Amendment right to a jury, was binding on the
lower courts until it was overruled by the United States Supreme Court in Cunningham.
“Had defendant requested a jury trial on aggravating circumstances, that request clearly
would have been futile, because the trial court would have been required [pursuant to
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 228, 237-238] to follow our

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decision in Black I and deny the request.” (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
An objection in the trial court is not required if it would have been futile. (Ibid.)
B. Right to Jury
For the reasons set forth in People v. Black (2007) 41 Cal.4th 799 (Black II), we
find no constitutional violation in the trial court’s imposition of the upper term.
In Blakely, the United States Supreme Court held that other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the statutory maximum,
that is “the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant,” must be determined by a jury
and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 303.) The high
court recently made clear that “[i]n accord with Blakely . . . the middle term prescribed
in California’s statutes, not the upper term, is the relevant statutory maximum.”
(Cunningham, supra, 549 U.S.__ [127 S.Ct. at p. 868].) In Cunningham, contrary to the
California Supreme Court’s conclusion in Black I, the United States Supreme Court held
that California’s DSL was unconstitutional to the extent it authorized the trial court to
impose an upper term sentence based on facts that were found by the court rather than by
a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p.__ [127 S.Ct. at p.
871].)
In Black II, the California Supreme Court reasoned that “as long as a single
aggravating circumstance that renders a defendant eligible for the upper term sentence
has been established in accordance with the requirements of Apprendi[3] and its progeny,
any additional factfinding engaged in by the trial court in selecting the appropriate
sentence among the three available options does not violate the defendant’s right to jury
trial.” (Black II, supra, 41 Cal.4th at p. 812.) “[I]f one aggravating circumstance has
been established in accordance with the constitutional requirements set forth in Blakely,
the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term
sentence is the ‘statutory maximum.’” (Black II, supra, at p. 813.)
3 Apprendi v. New Jersey (2000) 530 U.S. 466.

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The United States Supreme Court has consistently stated that the right to a jury
trial does not apply to the fact of a prior conviction. (Blakely, supra, 542 U.S. at p. 301;
see also Black II, supra, 41 Cal.4th at p. 818.) This exception is not to be read too
narrowly. (Black II, supra, at p. 819.) The fact of a prior conviction includes “other
related issues that may be determined by examining the records of the prior convictions.”
(Ibid.) It has also been concluded that this exception relates more broadly to the issue of
“recidivism.” (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222, cited with
approval in People v. McGee (2006) 38 Cal.4th 682, 700-703.) Factors such as being on
probation at the time of the offense and previously being unsuccessful on probation come
within the recidivism exception. Both may be ascertained simply by examining the
records of prior convictions. (Black II, supra, at p. 819.)4 Citing federal circuit decisions
stating that the prior conviction exception may be found using the preponderance of the
evidence standard, Black II also concluded that “[t]he high court never has suggested that
the requirement of proof beyond a reasonable doubt could be severed from the right to
jury trial for purposes of applying the [prior convictions exception].” (Black II, supra, at
p. 820, fn. 9.)
Applying Black II here, we conclude that defendant was not deprived of due
process or his constitutional right to a jury trial by imposition of the upper term. That
sentence was based on at least one aggravating factor that satisfied the Sixth Amendment
and made him eligible for the upper term sentence. (Black II, supra, 41Cal.4th at p. 813.)
The trial court finding that appellant was on probation at the time of the charged offense
was the type of finding relating to a defendant’s recidivism “that may be determined by
examining the records of the prior convictions” and is “‘typically and appropriately
undertaken by a court.’” (Black II, supra, at pp. 818-820; accord, People v. Yim (2007)
4 The issue of whether a trial court can constitutionally impose an upper term based
on the fact that the defendant was on parole when the crime was committed, without a
jury determination, is currently before the California Supreme Court in People v. Towne,
review granted July 14, 2004, S125677.

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152 Cal.App.4th 366, 370-371.) This single factor made defendant eligible for an upper
term sentence, and the trial court was free to consider other factors in imposing an upper
term sentence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________, P. J.
BOREN
We concur:
_____________________, J.
ASHMANN-GERST
_____________________, J.
CHAVEZ

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