P. v. Mack

Filed 6/1/07 P. v. Mack 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CLAYTON TREVOR MACK,
Defendant and Appellant.
D048084
(Super. Ct. No. SCD189468)
APPEAL from a judgment of the Superior Court of San Diego County, Kerry
Wells, Judge. Affirmed in part and reversed in part.
A jury convicted Clayton Mack of three counts of forcible rape (Pen. Code, § 261,
subd. (a)(2)),1 three counts of forcible oral copulation (§ 288a, subd. (c)(2)), kidnapping
for purposes of rape (§ 209, subd. (b)(1)), residential burglary (§ 459), making a criminal
threat (§ 422), inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)), attempting to
dissuade a witness from testifying (§ 136.1, subd. (a)(2)) and disobeying a court order
1 All further statutory references are to the Penal Code unless otherwise specified.

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(§ 166, subd. (a)(4)). The jury also found true a series of associated special allegations.
The trial court sentenced Mack to an indeterminate prison term of 25 years to life, plus a
consecutive determinate prison term of 38 years 8 months.
On appeal, Mack argues the court erroneously denied his motions to change
retained counsel and his motion to represent himself under Faretta v. California (1975)
422 U.S. 806. He also argues that, under Cunningham v. California (2007) 549 U.S. ___
[127 S.Ct. 856] (Cunningham), the court's imposition of the upper term for one
component of his determinate sentence (count 9) was error.2
I
FACTS
A. Prosecution Case
Jaime J. dated Mack for over two years and lived with him for some period of
time. However, they broke up in late January 2005. Jaime moved into her mother's
apartment, but Mack continued to telephone her. He came to her mother's apartment on
2 Mack also asserts on appeal execution of the term of life with the possibility of
parole imposed for the conviction for kidnapping for purposes of rape (count 1), stayed
under section 667.61, subdivision (f), and execution of the concurrent term imposed for
the conviction for inflicting corporal injury on a cohabitant (count 9) should have been
stayed under section 654. The People concede, and we agree, the court should have
stayed execution of those terms under section 654. Mack also contends, and the People
agree, that the abstract of judgment incorrectly lists his conviction on count 10 as a
violation of section 281, subdivision (a)(2); instead it should have shown a conviction for
violation of section 261, subdivision (a)(2). On remand, the trial court shall stay
execution of the sentences on counts 1 and 9 pursuant to section 654 and amend the
abstract of judgment to reflect the proper Penal Code section for count 10.

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February 6, 2005, ostensibly just to "talk," but raped her. However, she did not
immediately report the assault to police.
The following morning, while Jaime was in the shower, Mack entered her
apartment and came into the bathroom. He was carrying a knife and glass pipe. He
forcibly raped her twice and forced her to orally copulate him. After he left, Jaime called
911 and obtained a restraining order.
Jaime did not see Mack again until March 4, 2005. Mack continued to try to
contact Jaime, and left several voice mails for her, claiming he was living in Alaska.
Jaime was working with police trying to locate Mack.
On the morning of March 4, Mack came to Jaime's apartment and kicked in the
door. She fled out the front door, wearing only jeans and a bra, but Mack caught her and
forced her into her car while a neighbor who witnessed the abduction called police.
Mack told her he had a weapon, and would hurt her if she tried to escape. He drove her
to an unfamiliar neighborhood, where he parked. He twice forcibly raped her and twice
forced her to orally copulate him.
Mack drove to a different location, where he got out of the car and allowed Jaime
to leave. She drove to a telephone and called 911. Police found Mack a short time later
trying to hide. At the police station, Mack expressed regret for what he had done, asked
for a deal, and said Jaime would never testify against him.
B. The Defense
Mack testified the sexual encounter on February 6 was consensual. When he
returned the following morning, he entered using a key Jaime had given to him and again

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had consensual sex. Jaime was angry with Mack because he had slept with her sister.
Jaime had threatened to file a false police report asserting he had raped her. He returned
her key to her and left.
When he returned on March 4, he accidentally broke a window while entering. He
forced her into the car so they could talk. They ended up having consensual sex in the
car. He denied making one of the statements to police attributed to him, but instead only
stated he had "----ed up" and that Jaime would not testify against him because she loved
him.
II
THE ORTIZ3 AND FARETTA ISSUES
Because Mack's claims on appeal arise out of the court's rulings on his last-minute
motions to change counsel, we set forth the facts from the hearing on these motions
before addressing Mack's claims.
A. The Motions
The Ortiz Motion
On November 10, 2005, the day set for trial, Mack asked for a Marsden4 hearing,
asserting he had a conflict of interest with his retained attorney allegedly because Mack
was "physically attracted to him." Mack wanted to discharge the attorney and "go pro
per." The court advised Mack that Marsden was not the appropriate framework for his
3 People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz).
4 People v. Marsden (1970) 2 Cal.3d 118.

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request because his present attorney was retained rather than appointed, and advised
Mack he had the right under limited circumstances to fire his retained counsel and replace
him either with another retained counsel or potentially to represent himself in propria
persona (pro. per.). When the court asked if Mack's motion was to fire his retained
attorney and proceed in pro. per., Mack responded, "That, and I . . . have another attorney
lined up, hopefully, [who's] going to take on the case."
The court immediately asked, "before we go too much further into this . . . , if you
either represent yourself or have another attorney, are you ready to proceed to trial
today?" Mack responded that, "I'm going to hire Roland Haddad; and I know . . . he's
going to need time to review the case," and Mack confirmed he was seeking to continue
the trial. The court stated the request was untimely because the matter was scheduled for
trial that day, and asked whether Haddad had agreed to represent Mack. Mack replied
that Haddad would take over "[a]s long as I can get payment to him, but it's going to take
[until] the end of this week," and that Haddad would need time to meet with Mack, obtain
the files, and prepare for trial. The court then confirmed that on October 24, it had
advised Mack's current attorney to discuss with him that, if he wished to change counsel,
the new counsel would need to be ready to proceed on November 10 with trial; Mack's
current counsel confirmed he had relayed that proviso to him. The court denied Mack's
motion to continue the trial to obtain new counsel. The court specifically informed Mack
that it would have granted his motion to replace counsel "if counsel was ready to go; but
since we don't have that, it's uncertain" because "[y]ou haven't retained him. In fact, we

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don't know when that retention would occur, if it could occur. All of those variables
make it very uncertain and do not constitute good cause for a continuance."
The Faretta Motion
Mack then stated he was "ready to represent myself then, pro per." However,
when the court again asked if he was ready to proceed, Mack stated he was not ready and
would "need at least another two weeks." The court reiterated that, although it would
hear his request to represent himself in pro. per., it would not grant a continuance.
The court then asked about Mack's "physical attraction" to his retained attorney,
and cautioned that, although it would not force him to keep his retained attorney, if Mack
wished to represent himself he would need to start trial without a continuance because the
request for the continuance was untimely. The court noted Mack's retained attorney was
"extremely capable" and, considering the fact no continuance would be granted, the court
asked whether Mack wished to proceed to trial with his retained attorney or instead to
seek to represent himself. Mack stated he wished to represent himself, and the court then
took a recess to have Mack fill out a Lopez5 waiver form before it would rule on his
Faretta motion.
The court subsequently conducted a hearing to consider Mack's Faretta motion. It
probed various inconsistencies between Mack's factual representations to the court (and
to a probation officer) and the actual facts, the bizarre statement Mack made to a mental
5 People v. Lopez (1977) 71 Cal.App.3d 568.

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health professional, and an apparent threat made by Mack to spit in the prosecutor's face.
The court denied the Faretta motion for the reasons we detail below.
B. Analysis of Ruling on the Ortiz Motion
Mack argues the trial court erroneously denied the Ortiz motion because it
incorrectly applied the standards used to evaluate a request to replace appointed counsel
under Marsden, and the error is reversible per se. Mack alternatively appears to argue
that, to the extent the court applied the correct standard but denied the motion as
untimely, the ruling was error.
Legal Framework
"[D]ue process of law, as it is expressed through the right-to-counsel provisions of
the state and federal Constitutions, comprehends a right to appear and defend with
retained counsel of one's own choice." (People v. Byoune (1966) 65 Cal.2d 345, 346.)
Unlike a request to replace appointed counsel under Marsden, where the inquiry is
focused on the adequacy of the representation being provided or the presence of an
irreconcilable conflict likely to harm adequate representation (Ortiz, supra, 51 Cal.3d at
p. 984), a defendant may replace retained counsel with or without cause. (Id. at p. 983.)
The right to replace retained counsel, however, "is not absolute" and must be
balanced against countervailing interests, including the government's " 'interest in
proceeding with prosecutions on an orderly and expeditious basis, taking into account the
practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place
at the same time." ' '' (Ortiz, supra, 51 Cal.3d at pp. 983-984.) Although the trial court
should accommodate a defendant's request to obtain private counsel of his or her choice,

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it is not required to do so where an accommodation will result " 'in a disruption of the
orderly processes of justice unreasonable under the circumstances of the particular
case.' " (People v. Courts (1985) 37 Cal.3d 784, 790 (Courts).) When deciding whether
the denial of a continuance to obtain private counsel "was so arbitrary as to violate due
process," we evaluate "the circumstances of [the] case" and " ' "particularly . . . the
reasons presented to the trial judge at the time the request [was] denied." ' " (Id. at
p. 791.)
Analysis
Mack's primary assertion is that the trial court applied the Marsden framework to
assess his motion to replace retained counsel rather than applying the Ortiz framework,
and this error is per se reversible. However, we have carefully reviewed the proceedings,
and are convinced the trial court understood the standards of Ortiz rather than Marsden
applied, and applied the correct framework. The court (1) specifically advised Mack that
his reference to Marsden was inaccurate because his present attorney was retained rather
than appointed and therefore Marsden was not the appropriate framework for his request,
(2) explained Mack had the right to change counsel under limited circumstances, and (3)
advised Mack that it would have granted his motion to replace counsel had new retained
counsel been ready to go to trial. Although Mack cites passages in the record where the
court noted Mack's current counsel was competent, the court's comments were made not
in connection with the ruling on Mack's Ortiz motion, but were instead made after the
court had already denied his Ortiz motion as untimely (a proper consideration under the
Ortiz framework) and were made in connection with assessing his Faretta motion.

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The court denied Mack's Ortiz motion because, although Mack had been
forewarned that any substitution should be made (and counsel be ready to proceed) by the
scheduled trial date, Mack nevertheless waited until the day of trial to seek a trial
continuance (to allow new counsel to prepare for trial) as an essential adjunct of his Ortiz
motion, and therefore the motion was untimely. Moreover, the court noted there was
uncertainty when (or even if) new counsel would take over the case, which further
militated against granting the continuance. The courts have recognized that requests for
continuances that are made on the date of trial, as Mack's request was here,6 jeopardize
the orderly administration of justice (Ortiz, supra, 51 Cal.3d at pp. 983-984), and trial
courts have latitude to deny such requests. (People v. Molina (1977) 74 Cal.App.3d 544,
548 ["while generally a defendant is entitled to be represented by counsel of his own
choosing, the right must be asserted in a timely fashion"]; People v. Jeffers (1987) 188
Cal.App.3d 840, 850 ["Where a continuance is requested on the day of trial, the lateness
of the request may be a significant factor justifying denial absent compelling
circumstances to the contrary."]; cf. Courts, supra, 37 Cal.3d at pp. 791-792 & fn. 4
6 Mack asserts the motion was not untimely because it was made on October 24,
2005, several weeks before the scheduled trial date, and was only continued to November
10 because the court suspended proceedings to conduct competency proceedings under
section 1368. However, the proceedings on October 24 contain no reference to a request
to substitute retained counsel. Instead, the only discussion of acrimony was that, when
Mack demanded that his attorney enter a guilty plea to all charges and ask for a
maximum sentence, Mack's counsel resisted the demand to "[commit] legal suicide." At
that hearing, Mack stated "[l]et's just do what I want to do, then. I want to go pro per
today. I feel that I need to let go [of] my attorney." Although this statement may at best
have been a nebulous suggestion that he was pursuing Faretta, it contains no mention of
substituting counsel within the ambit of Ortiz.

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[distinguishing request for continuance of trial in case made "a week before trial" from
"eve-of-trial, day-of-trial, and second-day-of-trial requests" found to have been properly
denied in other cases].) Additionally, at the time of Mack's request for a continuance, the
trial court was informed there was only a possibility Mack would retain new counsel.
A trial court has greater latitude to deny a request for a continuance for purposes
of substituting private counsel when the prospect that a defendant will retain such counsel
is "still quite speculative at the time the motion for continuance [i]s made." (Courts,
supra, 37 Cal.3d at p. 791, fn. 3 [emphasizing the request in that case, which was
accompanied by testimony establishing that "a lawyer-client relationship had been
established" with prospective retained counsel, was distinguishable from requests in
"cases which have upheld the denial of a continuance on the ground that participation by
a particular private attorney was still quite speculative at the time the motion for
continuance was made"].) Here, the proffer before the trial court regarding Mack's
continuance request was that Mack had called Haddad the previous evening and was
"going to hire" Haddad, who would take over "as long as I can get payment to him,"
suggesting on its face a new lawyer had not yet been retained and Haddad's purported
agreement to represent Mack was conditional. Indeed, Mack's request was
unaccompanied by any suggestion of when Haddad would be available or why Haddad
had not yet been in contact with either the court or Mack's current counsel. (See People
v. Johnson (1970) 5 Cal.App.3d 851, 858-859 [upholding trial court's denial of day-of-
trial request for continuance to obtain private counsel where private counsel had not

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contacted court, and witnesses were ready, because "[t]o continue the trial at such a date
on such nebulous grounds would adversely affect the orderly administration of justice"].)
We conclude the trial court applied the correct standard for Mack's request for a
continuance to substitute new retained counsel, and did not abuse its discretion in
denying the motion.
C. Analysis of Ruling on the Faretta Motion
Mack contends the trial court abused its discretion when it denied his alternative
Faretta motion to represent himself.
Legal Framework
A defendant has a federal constitutional right to self-representation in a criminal
proceeding (Faretta, supra, 422 U.S. at p. 819), and Faretta applies to California
criminal proceedings (People v. Windham (1977) 19 Cal.3d 121, 128 [a trial court must
grant a defendant's Faretta motion "upon ascertaining that he [or she] has voluntarily and
intelligently elected to do so, irrespective of how unwise such a choice might appear to
be"]). Generally, "[a] trial court must grant a defendant's request for self-representation if
three conditions are met. First, the defendant must be mentally competent, and must
make [the] request knowingly and intelligently, having been apprised of the dangers of
self-representation. [Citations.] Second, [the defendant] must make [the] request
unequivocally. [Citations.] Third, [the defendant] must make [the] request within a
reasonable time before trial. [Citations.]" (People v. Welch (1999) 20 Cal.4th 701, 729.)
Although a defendant has the right to self-representation, to invoke an
unconditional right he or she must assert it within a reasonable time prior to the

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commencement of trial. (People v. Welch, supra, 20 Cal.4th at p. 729.) A motion not
made within a reasonable time prior to trial is addressed to the sound discretion of the
trial court. (People v. Marshall (1996) 13 Cal.4th 799, 827.) In exercising its discretion
the trial court should consider the quality of counsel's representation, the defendant's prior
proclivity to substitute counsel, the reason for the request, the stage of the proceedings,
and the disruption or delay that might reasonably be expected to follow granting the
motion. (Ibid.) Additionally, a trial court may deny the motion if it finds it is made for
the purpose of frustrating the orderly administration of justice. (People v. Marshall
(1997) 15 Cal.4th 1, 23.) Finally, when ruling on a motion made in close proximity to
trial, the court may also consider whether the defendant's prior conduct has demonstrated
a likelihood the proceedings would be disrupted in the event the motion for self-
representation is granted. (People v. Jenkins (2000) 22 Cal.4th 900, 962-963.) This
includes a consideration of defendant's manner and demeanor, any previous disruptive
behavior, and any lack of control over his or her emotions that would demonstrate a risk
of disruption of future court proceedings. (Ibid.) In exercising its discretion, the court
may rely on a defendant's previous conduct and need not credit assurances made by the
defendant at the time of the motion that he or she would not cause further disruption of
the proceedings. (Ibid.)
When considering a Faretta motion made on the eve of trial, the court's discretion
is "broad." (People v. Hardy (1992) 2 Cal.4th 86, 196.) On appeal, we "must give
'considerable weight' to the court's exercise of discretion and must examine the total

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circumstances confronting the court when the decision is made." (People v. Howze
(2001) 85 Cal.App.4th 1380, 1397-1398.)
Analysis
The court concluded Mack's motion was untimely because it was made on the day
trial was scheduled to begin.7 Moreover, it was accompanied by a request for a
continuance that the trial court had already rejected.8 Although there is no bright line test
for determining the timeliness of a Faretta motion (People v. Clark (1992) 3 Cal.4th 41,
99), the courts have noted a motion made within three calendar days of the
commencement of trial does not give rise to an unqualified right to self-representation,
7 Mack argues his Faretta motion was timely because he first made the motion on
October 24. However, there was substantial doubt at that hearing about Mack's
competence, and the garbled request by Mack was apparently focused on allowing him to
discharge his attorney so he could plead guilty to all charges and request the maximum
sentence, not to take over trial of the case. A Faretta motion must be unequivocal "to
protect the courts against clever defendants who attempt to build reversible error into the
record by making an equivocal request for self representation." (People v. Marshall,
supra, 15 Cal.4th at p. 22.) The demand for self-representation must be both articulate
and unmistakable (id. at p. 21), and where "it is clear from the record that defendant
never made an unequivocal assertion of his [or her] right to self-representation . . . [a]
trial court [does] not err in declining to consider such a request." (People v. Valdez
(2004) 32 Cal.4th 73, 99.) We are not persuaded by Mack's claim that the timeliness of
the motion must be assessed based on his October 24 statements.
8 Mack argues the request was timely because, although he asked to continue the
trial to allow him to prepare, he agreed to start trial without a continuance were his
motion granted. However, a court could well conclude his offer to go to trial without
preparation cast doubt on whether his Faretta request was "knowing[] and intelligent[],
having been apprised of the dangers of self-representation" (People v. Welch, supra, 20
Cal.4th at p. 729), and was attempting to set up the record for appeal by "playing 'the
Faretta game' " (People v. Williams (1990) 220 Cal.App.3d 1165, 1170) for a subsequent
appeal asserting his trial was unfair because he was denied time to prepare.

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and a court has discretion to deny the motion as untimely. (People v. Rudd (1998) 63
Cal.App.4th 620, 626.) Indeed, even a motion made six calendar days prior to trial was
made in such "close proximity" to trial that the decision whether to deny it as untimely
was within the discretion of the trial court. (People v. Ruiz (1983) 142 Cal.App.3d 780,
789-791).
The court below carefully considered each of the factors relevant to a Faretta
motion made on the eve of trial. It considered the quality of counsel's representation
(People v. Marshall, supra, 13 Cal.4th at p. 827), and noted Mack's attorney was
competent and prepared for trial. It assessed Mack's stated reason for the request, and
concluded the purported conflict arising from his alleged physical attraction to counsel
was "not credible to me [but instead] seem[s] to me to be patently false and
manipulative."9 The court also evaluated whether Mack had a proclivity to substitute
counsel, and concluded Mack did manifest a proclivity to try to manipulate the
proceedings to delay trial (by apparently feigning mental illness and then refusing to
cooperate with the doctor in the section 1368 proceedings and by seeking a continuance
on the day of trial), which is a permissible consideration. (See People v. Marshall, supra,
15 Cal.4th at p. 23 [court may deny a motion if it finds it is made for the purpose of
frustrating the orderly administration of justice].) The court also considered whether
Mack's prior conduct raised a likelihood the proceedings would be disrupted were his
9 The court noted this "problem" arose only on the day of trial, was inconsistent
with Mack's heterosexual history, and that Mack made the claim with "a little grin on his
face."

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motion for self-representation granted. (People v. Jenkins, supra, 22 Cal.4th at pp. 962-
963.) The court noted he had delayed the proceedings by feigning mental illness and
there was "reason to believe that that behavior could occur again," had shown a mercurial
temperament and sullenly obstreperous behavior, and had threatened to spit on the
prosecutor. These behaviors raised concerns that Mack would be unable to comport with
appropriate courtroom behavior but would instead be disruptive were he representing
himself. The court concluded Mack's course of conduct showed he was "playing a game
with the court" and seeking to "delay these proceedings because the options are not
great," which are proper considerations supporting denial of a Faretta motion. (People v.
Williams, supra, 220 Cal.App.3d at p. 1170.)
We conclude, considering all the circumstances, the denial of Mack's Faretta
motion was not an abuse of discretion.
III
THE BLAKELY10/CUNNINGHAM ISSUES
Mack contends the trial court erred by imposing the six-year upper term for his
burglary conviction because the sentence was based on facts not found by a jury beyond a
reasonable doubt or admitted by him in violation of Blakely and Cunningham. The
People contend the claim is not preserved for appeal, and in any event there was no
sentencing error.
10 Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

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A. The Sentencing Hearing
At the sentencing hearing, the court imposed the upper term for his burglary
conviction (count 7), stating:
"I am imposing the upper term of six years on the burglary count.
The reason for that--the additional circumstances in aggravation that
I find that support that are the defendant does have a substantial
criminal record. He's been committing crimes for years, despite his
youth, against numerous types of victims. The crimes are increasing
in seriousness and increasing in violence, and his pattern and history
does indicate that the defendant is a serious danger to the
community. For that reason, I'm imposing the upper term . . . ."
B. Blakely/Cunningham
In Blakely, supra, 542 U.S. 296, the United States Supreme Court held
Washington's sentencing procedure, by permitting the trial court to add three years to the
defendant's sentence based on an aggravating factor of deliberate cruelty that was neither
found true by a jury nor admitted by the defendant as part of his guilty plea, violated the
defendant's Sixth Amendment right to a jury trial. (Blakely, at pp. 301-305.) In so doing,
the court applied its holding in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)
that: "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." (Id. at p. 490, quoted in Blakely, supra, at p. 301.) Blakely
concluded " the 'statutory maximum' for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of facts reflected in the jury verdict or admitted by
the defendant." (Blakely, at p. 303.)

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Subsequently, in People v. Black (2005) 35 Cal.4th 1238, 1258, the California
Supreme Court concluded a trial court's imposition of an upper term under California's
determinate sentencing scheme based on facts not found by a jury or admitted by a
defendant does not violate either Blakely or the United States Constitution. However, on
January 22, 2007, in Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court
rejected Black.
In Cunningham, the court noted California's determinate sentencing law (DSL)
and relevant sentencing rules "direct the sentencing court to 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." (Cunningham, supra, 127 S.Ct. at p. 862.) Furthermore, "an upper term . . .
may be imposed only when the trial judge finds an aggravating circumstance." (Id. at
p. 868.) Cunningham held imposition of an upper term under California's determinate
sentencing law, based on neither a prior conviction nor facts found by the jury or
admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United
States Constitution, stating:
"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.)

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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], 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); Blakely [, supra,] 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005). '[T]he relevant "statutory
maximum," ' this Court has clarified, 'is not the maximum sentence a
judge may impose after finding additional facts, but the maximum he
may impose without any additional findings.' Blakely, 542 U.S., at
303-304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham,
supra, 127 S.Ct. at p. 860.)
The Cunningham court reversed the defendant's upper term 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.) Cunningham concluded: "In accord with
Blakely, therefore, the middle term prescribed in California's statutes, not the upper term,
is the relevant statutory maximum." (Id. at p. 868.) Accordingly, Cunningham held:
"Because circumstances in aggravation are found by the judge, not
the jury, and need only be established by a preponderance of the
evidence, not beyond a reasonable doubt [citation], the DSL 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.' [Citation.]" (Ibid.)
C. Waiver
The People first argue Mack waived any claim that the court improperly relied on
his criminal history because Mack did not object at the sentencing hearing. (See People
v. Hill (2005) 131 Cal.App.4th 1089, 1103.) However, Mack's sentencing occurred on

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January 13, 2006, in the interregnum between Black and Cunningham. Accordingly, at
the time of sentencing, the controlling law was Black, which concluded imposition of an
upper term under California's determinate sentencing scheme based on facts not found by
a jury or admitted by a defendant did not violate Blakely.
In People v. Scott (1994) 9 Cal.4th 331, the California Supreme Court held a
defendant's failure to challenge in the trial court the imposition of an aggravated sentence
based on erroneous or flawed information waived that issue for purposes of appeal.
However, Scott's reason for its waiver rule--it was necessary to facilitate the prompt
detection and correction of error in the trial court, thus reducing the number of appellate
claims and preserving judicial resources (id. at pp. 351-353)--is a pragmatic rationale that
does not support the application of the waiver rule here. Prior to Cunningham, the
controlling law in California was that there was no constitutional right to a jury trial in
connection with a court's imposition of the upper term. Because of this state of the law,
an assertion of a constitutional challenge to the imposition of an upper term would not
have achieved the purpose of prompt detection and correction of error in the trial court.
To the contrary, an objection would have been futile in light of Black, and we will not
require interposition of futile objections at trial to preserve issues for appeal. (Cf. People
v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.)
Moreover, the essence of an allegation of Blakely error is that the defendant was
deprived of his or her constitutional right to a jury trial on the factors on which the trial
court relied in imposing an upper term. 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

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the issue in the trial court. (People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5.)
Because a claim of Blakely error involves a partial deprivation of the right to a jury trial--
a jury trial on aggravating factors--Mack's challenge to his upper term is cognizable on
appeal even though he did not raise the issue in the trial court.
D. Analysis of Cunningham Issue
Mack argues the trial court's rationale for imposing the upper term shows it
engaged in both a quantitative and qualitative analysis of his criminal history, as well as a
predictive analysis of his danger to the community, and these considerations violate
Cunningham and exceed the limited exception recognized by Almendarez-Torres v.
United States (1998) 523 U.S. 224, 257 for sentence decisions based on his prior
convictions. The People argue the Almendarez-Torres exception, recognized in
Apprendi, supra, 530 U.S. at p. 490 [in imposing an aggravated sentence, "the fact of a
prior conviction" need not be proved to a jury beyond a reasonable doubt]) and
reaffirmed in Blakely and Cunningham, apply broadly to all sentence decisions based
broadly on the defendant's recidivist behavior, and therefore the trial court's selection of
the upper term based on Mack's recidivism is not barred by Blakely and Cunningham.11
(See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.)
11 The People make no effort to argue that, if we conclude the factual basis relied on
by the trial court was impermissible under Cunningham, the error was harmless and the
sentence may be affirmed.

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The Trial Court Relied on Impermissible Factors
The People argue it was permissible for the trial court to rely on its findings that
Mack's prior convictions were numerous and of increasing seriousness, and that he posed
a danger to the community based on his history. The People note that under Almendarez-
Torres v. United States, supra, 523 U.S. 224, a court may impose a sentence that exceeds
the statutory maximum on the basis of a defendant's prior conviction, and contend that
courts have construed the "Almendarez-Torres exception" to apply broadly,
encompassing more than the mere fact of a prior conviction. The People maintain
Almendarez-Torres applies to the "recidivism factors" on which the trial court relied in
imposing an upper term in this case.
Prior to Cunningham, 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. (See e.g. People v. Thomas, supra, 91 Cal.App.4th at p. 221 [agreeing
with "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, 708-709
[concluding Court of Appeal erred in "narrowly constru[ing] the Almendarez-Torres
exception for recidivist conduct as preserved by Apprendi"]; accord People v. 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

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factors pertaining to a defendant need not be proven 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" Justice Kennedy mentions, to
which 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;
"(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), those 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

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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.)
Prior to Cunningham, the United States Supreme Court had repeatedly described
the "narrow exception" (Apprendi, supra, 530 U.S. at p. 490) provided in Almendarez-
Torres in a manner to exclude recidivism-related factors from its scope. (United States v.
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,
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 v. Arizona, 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"].)
We find nothing in Booker, Blakely, or Ring that warrants 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, at
p. 487.) Accordingly, we conclude that the United States Supreme Court's statement that,

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"[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), 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.
Although " 'that should be the end of the matter' " (Cunningham, supra, 127 S.Ct.
at p. 858), lest we be charged with adopting a "wooden" interpretation of the Almendarez-
Torres exception (Cunningham, supra, 127 S.Ct. at p. 872 (dis. opn. of Kennedy, J.)), we
note that many of the reasons the Supreme Court offered in Apprendi for distinguishing
Almendarez-Torres apply with equal force to the recidivism related factors present in this
case. (See Apprendi, supra, 530 U.S. at p. 488, fn. omitted ["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 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,
Mack did not admit the recidivism-related aggravating facts in this case, and a jury has
not determined any of those facts to be true beyond a reasonable doubt. Because none of
the recidivism-related aggravating factors on which the trial court in this case relied is the
mere fact of a prior conviction, we conclude the trial court improperly relied on these
factors in imposing an upper term.

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The error requires reversal
The People do not contend the Cunningham error in this case was harmless.
Because we cannot determine what sentence selection the trial court would have made
had it limited itself to the facts of Mack's prior convictions, we reverse and remand for
resentencing.
DISPOSITION
The convictions are affirmed. The judgment is reversed as to the term imposed on
count 7 pursuant to Cunningham, and on counts 1and 9 pursuant to section 654, and the
matter is remanded for resentencing and for correction of the abstract of judgment.
McDONALD, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.

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