P. v. Larkin

Filed 12/6/07 P. v. Larkin CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
SHONDEL LAMAR LARKIN,
Defendant and Appellant.
2d Crim. No. B193832
(Super. Ct. No. LA048009)
(Los Angeles County)
Shondel Lamar Larkin appeals the judgment entered after a jury convicted
him of attempted forcible rape (Pen. Code,1 §§ 664/261, subd. (a)(2)), first degree
burglary (§ 459), criminal threats (§ 422), and assault with intent to commit a felony (§
220). Larkin pled no contest to one count of prowling (§ 647, subd. (h)). In a bifurcated
proceeding, the trial court found true the allegations that Larkin had a prior serious or
violent felony conviction (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d)) and had
served a prior prison term (§ 667.5, subd. (b)). Larkin was sentenced to a total of 17
years in state prison, consisting of the upper term of six years on the assault count
doubled to 12 years under the three strikes law, plus five years pursuant to section 667,
subdivision (a)(1). Sentencing on the remaining counts was stayed pursuant to section
1 Further statutory references are to the Penal Code, unless otherwise noted.

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654, and the court dismissed the prior prison term allegation. Larkin contends (1) the
trial court abused its discretion in admitting evidence of other crimes pursuant to
Evidence Code section 1101, subdivision (b); (2) his confrontation rights were violated
by the admission of DNA expert testimony; (3) the court abused its discretion in denying
his motion for mistrial based on late discovery, and in thereafter refusing to instruct the
jury with CALCRIM No. 306; (4) his trial attorney provided constitutionally ineffective
assistance of counsel by failing to present a surrebuttal witness; and (5) he was sentenced
to the upper term in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.
Ct. 856]. We affirm.
FACTS AND PROCEDURAL HISTORY
The Prosecution's Case
A.
The Charged Offenses
At approximately 6:00 a.m. on September 2, 2004, Robyn R. was opening
the living room window in her downstairs apartment in Studio City when she saw Larkin
walking up her driveway. After Larkin passed out of sight, Robyn heard him walking
upstairs. When Robyn returned to the open window, she saw Larkin crouching outside of
it as he tried to pull off the screen. Robyn left to call the police. When she returned,
Larkin was gone.
At about 2:00 a.m. the following morning, Robyn's neighbor, Lori C., was
asleep in her bedroom when she awakened and saw Larkin standing in the doorway.2
Larkin's pants were undone and he had an erection. Larkin told Lori to "shush" and said
"I'll kill you." Lori pleaded with Larkin, who responded, "I want you." Lori told him
"no" and tried to slide across her bed toward the window. As she stood up from the bed,
Larkin came up to her and said, "If you scream, I'll kill you." When Lori attempted to
scream, Larkin grabbed her face and dislocated her jaw with his hands. After she
2 Lori lived in an upstairs apartment in a four-plex building next door to the four-
plex building where Robyn lived.

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dropped to her knees, Larkin kneed her in the hip, grabbed her around the waist, and tried
to pull her toward him. Lori fought with him and screamed "rape" and "help." Larkin
eventually let go and ran out of the bedroom. As Lori ran down the hall toward her front
door, she saw that her kitchen window was open. Lori testified that the window had a
defective lock and could be accessed from the walkway adjacent to her apartment. The
back and front doors were locked. Lori unlocked the front door, ran into the street naked,
and screamed for help. Robyn heard Lori and called the police. In addition to a
dislocated jaw, Lori's mouth was bloody and she had bruises on her hip and calf. During
the subsequent investigation, the police recovered a man's watch with a broken strap from
the floor of Lori's bedroom.
On October 12, 2004, Robyn identified Larkin from a six-pack
photographic lineup as the man who had tried to enter her apartment on September 2.
Robyn also believed she may have seen the suspect at a coffee shop in Sherman Oaks
three or four weeks after the incident. At trial, Robyn identified Larkin as the man who
tried to enter her apartment but testified she "could not be certain" he was the individual
she had seen at the coffee shop.
On September 13, 2004, Lori told the investigating officer, Los Angeles
Police Detective Theresa Gordon, that she was not ready to identify the suspect.
Detective Gordon showed Lori a photographic lineup containing Larkin's photograph on
October 21, but Lori was unable to make an identification. Lori testified at trial,
however, that she had recognized Larkin's face from the bottom center photograph but
did not identify him as her assailant because she was "scared to death" and she "froze."
Lori also testified that she called the police later that day and said she wanted to try again,
but was told she could not. A week before Lori's trial testimony, she knew that Larkin
was the individual depicted in the bottom center photograph. Both women positively
identified Larkin at trial.
A latent fingerprint was lifted from the back door of Lori's apartment,
which is next to the kitchen window, and a palm print was lifted from the inside kitchen

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window sill. A latent print examiner from the Los Angeles County Police Department
(LAPD) testified that the fingerprint was "full" and "pristine." That examiner and
another LAPD print examiner compared the prints to a latent print card and determined
that the fingerprint matched Larkin's right middle finger and the palm print matched his
left palm. Genetic material obtained from the interior wristband of the watch found in
Lori's apartment was sent to Cellmark for analysis. Cellmark's former laboratory
director, who was not involved in the testing of the DNA obtained from the wristband,
testified that at least three individuals were possible donors of the DNA and that Larkin
could not be excluded as a source.
B.
Other Crimes Evidence (Evid. Code, § 1101, subd. (b))
On December 11, 2000, Tara S. was taking a shower in her apartment when
she saw Larkin, who lived across the hall, looking up at her around the shower curtain.
Tara screamed, and Larkin left. Tara called the police, and subsequently discovered that
about $40 was missing from her wallet.
At about 11:30 p.m. on a Saturday night in February 2003, Pamela D. was
watching television at her home in Sherman Oaks when she heard a noise in her
backyard. As Pamela turned down the sound on her television, her neighbor, Ronald
Quigley, called her on the telephone to warn her that someone might be in her backyard.
Pamela called the police. Quigley subsequently gave another neighbor, Los Angeles
County District Attorney Investigator David Ishibashi, the license plate number of an
unfamiliar BMW he had seen parked approximately a block away.
Around 11:00 p.m. on September 17, 2004, Pamela discovered that a
backyard light near her bedroom, which had been "unscrewed constantly," was
unscrewed again. From her living room window, she saw Larkin bent over and coming
around the corner near her bedroom window. Larkin stared at Pamela for a few seconds,
then ran away.

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At approximately 9:30 p.m. on May 13, 2003, Kimberly B. was watching
television at her home in Sherman Oaks when she heard a noise. Kimberly went to her
kitchen window, saw a moving shadow in her backyard, then called 911. While she was
on the telephone, she saw someone outside looking into her bathroom window. The
police arrived approximately a half hour later and saw Larkin jump over Kimberly's
backyard fence and start running. Larkin was arrested, and his BMW was impounded.
The BMW's license plate matched the number Quigley had written down after the first
incident involving Pamela D. Larkin stipulated at trial that he was involved in the Tara S.
and Pamela D. incidents, and that he was the registered owner of the BMW during the
time in question.
C.
The Defense
When victim Lori C. was shown the six-pack photographic lineup on
October 21, 2004, she focused on Larkin's photograph but did not make a positive
identification. About a week later, she spoke to Los Angeles Police Detective James
Clifford on the telephone and apologized for failing to make an identification. Detective
Clifford testified that Lori did not tell him during that conversation that she could identify
the suspect. Detective Gordon testified that Lori did not tell her she could make an
identification until July 20, 2006, when Lori said she could identify Larkin and that his
photograph was in the bottom center position of the six-pack lineup she had been shown.
Lori also told Detective Gordon that she had recognized Larkin's photograph but had
been too frightened to identify him as her assailant.
Simon Cole, a latent print identification expert, testified that the error rate
in fingerprint comparison identification is 0.8 percent. While Cole cited a lack of
scientific standards in the field of fingerprint identification and referred to two studies
indicating that such identifications are subjective, he conceded that there has never been a
case of two people having the same prints and that there was no evidence indicating that

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the examiners who analyzed the finger and palm prints lifted from the crime scene had
mistakenly identified them as Larkin's.
Robert Shomer, an expert on witness identification, testified to his opinion
that such identification procedures are unreliable. According to Shomer, cross-racial
identifications are "far less accurate," and the likelihood of misidentifying a Black male
such as Larkin is five times greater than a White male. Shomer also opined that the
accuracy of a six-pack identification is undermined when the individual showing the
photographs knows which one depicts the suspect. When presented with a hypothetical
involving the facts of Lori's C.'s identification, Shomer believed that an identification
made under such circumstances would be "negative for accuracy." Shomer also indicated
that of the thousands of six-pack photographic lineups he had seen, at least 85 percent
placed the suspect in the number 2 position (top center) or the number 5 position (bottom
center).
Greg Marrero, Larkin's talent agent, testified that Larkin had appeared as a
model in several commercial and print advertisements in 2001 and 2002, and had also
appeared in two national television commercials: one for Nike that ran from January
2001 until February 2002, and another for Diamond Walnuts that aired between
September 2002 and November 2004. It was stipulated that Larkin was in jail from
September 21, 2004, until December 31, 2004.
D.
Rebuttal and Surrebuttal
Deputy District Attorney Rose Demattia, the prior prosecutor on the case,
testified that she had spoken with Lori on several occasions prior to the preliminary
hearing on September 15, 2005. Lori told Demattia she had seen the suspect in the six-
pack but had been unable to identify him due to her emotional state. Lori asked Demattia
if she could view the six-pack again, but Demattia refused. Demattia told Larkin's former
attorney, James Blatt, that she was not going to call Lori as a witness at the preliminary
hearing because she did not want to taint any subsequent identification at trial. Detective

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Gordon testified at the preliminary hearing that Lori told her she could not identify
Larkin's face and that she could not identify anyone from the six-pack.
DISCUSSION
I.
Evidence Code Section 1101, Subdivision (b)
Larkin contends the trial court abused its discretion in admitting other
crimes evidence pursuant to Evidence Code section 1101, subdivision (b). He claims the
incidents involving Kim W., Tara S. and Pamela D. were not sufficiently similar to the
charged offenses, and that the evidence should have been excluded as more prejudicial
than probative under Evidence Code section 352. We disagree.
Evidence Code section 1101, subdivision (b), allows evidence of uncharged
similar acts when relevant to prove a fact other than criminal disposition, such as motive,
intent, common plan, or identity. (People v. Catlin (2001) 26 Cal.4th 81, 145-146;
People v. Ewoldt (1994) 7 Cal.4th 380, 400, 402, fn. 6.) "In order to be admissible to
prove intent, the uncharged misconduct must be sufficiently similar to support the
inference that the defendant '"probably harbor[ed] the same intent in each instance."
[Citations.]' [Citation.]" (Ewoldt, supra, at p. 402.) "[M]otive 'may be established by
evidence of "prior dissimilar crimes." [Citation.] "Similarity of offenses [is] not
necessary to establish this theory of relevance" for the evident reason that the motive for
the charged crime arises simply from the commission of the prior offense.' [Citation.]
However, a nexus or direct link must still exist between the prior crime and the charged
offense. [Citation.]" (People v. Walker (2006) 139 Cal.App.4th 782, 804.) The trial
court's decision to admit evidence of other crimes for these purposes, which includes the
determination that the evidence is more prejudicial than probative under Evidence Code
section 352, is reviewed for an abuse of discretion. (See People v. Carter (2005) 36
Cal.4th 1114, 1149.)
The trial court concluded that the prior uncharged offenses were relevant to
prove Larkin had the requisite intent and motive in committing the burglary of Lori C.'s

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residence and the attempted burglary of Robyn R.'s residence. The court reasoned:
"[O]n the issue of intent, the court feels that the prior offenses do not have to be identical
or even similar. They simply have to have a strong showing of an intent of a sexual
nature. That is an intent to look in to view women that was sexually motivated in order
to be highly relevant on the issue of whether or not there is a sufficient intent on count 2
[the burglary of Lori C.'s residence] and count 5 [the attempted burglary of Robyn R.'s
residence]." The court concluded that the evidence was "highly probative on the issue of
the intent and motive and that the probative value outweighs the prejudicial effect."
The court did not abuse its discretion in admitting the evidence of Larkin's
prior uncharged offenses. While the court stated that the prior offenses "[did] not have to
be identical or even similar" to prove intent, the court's subsequent comments indicate its
recognition that the prior offenses were sufficiently similar to the charged crimes for the
purpose of proving intent. In all five crimes, Larkin either entered or attempted to enter
the homes of single women who were alone. Like the Lori C. incident, all three of the
uncharged offenses occurred at night. In the Pamela D., Kimberly W., and Robyn R.
incidents, Larkin was found at or near a window. The Tara S. and Lori C. incidents
involved overt attempts to obtain sexual gratification without the victim's consent. These
similarities are sufficient to support the inference that Larkin entered the residences of
Robyn R. and Lori C. with the specific intent and motive to commit sexual assault.
While Larkin characterizes the prior uncharged offenses as "mere peeping Tom conduct,"
the evidence supports the inference that Larkin intended to enter each of the victims'
homes. Moreover, the court did not abuse its discretion in finding that the uncharged
offenses were substantially more probative than prejudicial because, among other things,
the evidence had a strong tendency to demonstrate Larkin's intent to commit sexual
assault and was not stronger or more inflammatory than the evidence relating to the
charged offenses. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.)
Even if the court erred in admitting the evidence of Larkin's prior offenses,
the error would be harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v.

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Welch (1999) 20 Cal.4th 701, 749-750 [recognizing that erroneously admitted other
crimes evidence is subject to Watson harmless error standard of review].) Larkin was
acquitted of the attempted burglary of Robyn R.'s residence, and his palm print was found
on the inside kitchen window sill of Lori C.'s apartment. This evidence is sufficient by
itself to identify Larkin as the perpetrator of the crime against Lori C. (People v.
Andrews (1989) 49 Cal.3d 200, 211, overruled on other grounds in People v. Trevino
(2001) 26 Cal.4th 237.)
II.
In his opening brief, Larkin contends that his Sixth Amendment right of
confrontation was violated when the trial court permitted former Cellmark employee
Word to testify about DNA tests that she did not perform because the test results were
"testimonial" as contemplated by Crawford v. Washington (2004) 541 U.S. 36. After
Larkin filed his brief, our Supreme Court expressly rejected this claim. (People v. Geier
(2007) 41 Cal.4th 555, 596-607.) Larkin acknowledges the Supreme Court's recent
decision "disposed of" the claim, and that we are bound to follow that decision. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III.
Denial Motion for Mistrial and Refusal to Instruct on Late Discovery
Larkin contends that the trial court erred in denying his motion for a
mistrial based on the late discovery of Lori C.'s statements to Demattia. He also argues
that the court erred in refusing to give a late discovery instruction. Neither claim has
merit.
A.
Background
Lori testified during cross-examination that she was unable to identify
Larkin from the six-pack photographic lineup, but that she had called Detective Clifford
later that day and told him she was ready to make an identification. She also testified that
Detective Clifford told her she should not return to the station, and that she had told the

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previous prosecutor that she knew what her assailant looked like. At the conclusion of
Lori's testimony, the current prosecutor indicated that he would speak with Detective
Clifford and Demattia, the former prosecutor, about Lori's statements. The following
day, the prosecutor relayed his interviews with Detective Clifford and Demattia to
defense counsel. The prosecutor also agreed to have Detective Clifford and Demattia on
call. Defense counsel moved for a mistrial on the ground that Lori's failure to identify
Larkin was "a big deal." The court indicated it would address the matter later.
Detectives Gordon and Clifford subsequently testified for the defense, and the
prosecution called Demattia as a rebuttal witness.
After the prosecutor agreed to allow the defense to read part of Lori's
preliminary hearing testimony to the jury as surrebuttal evidence, defense counsel asked
the court to instruct the jury on late discovery "given the lateness . . . of these proposed
statements by Lori, and then the subsequent investigation that lead [sic] to other late
statements from Ms. Demattia regarding statements that have been made to her that she's
known about for a long, long time that have never been turned over." The court denied
the request.
Defense counsel moved for a mistrial again prior to closing argument.
Counsel complained that Demattia had never told her Lori had repeatedly said she could
identify the suspect in a six-pack lineup. According to defense counsel, she was
"sandbagged" by the prosecution's decision to withhold the information that it had
prevented Lori from making a subsequent identification. The prosecutor responded that
Lori had told him about the six-pack on July 7, and that he told defense counsel about it
the same day. The prosecutor also indicated Demattia told him that she had told James
Blatt, Larkin's prior attorney, about the information, and that Demattia had made herself
available to the defense. Defense counsel represented, however, that Blatt had denied
that Demattia told him this. The court denied Larkin's motion for a mistrial without
comment.

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During jury deliberations, Larkin's attorney renewed her motion for a
mistrial. Counsel asserted that Demattia's testimony was "substantially different" from
what Demattia had told her. The prosecutor, who was present when defense counsel had
spoken to Demattia, indicated that Demattia's testimony was consistent with her
representations to defense counsel. The prosecutor specifically recalled Demattia saying
that "she decided not to show [Lori] the six-pack because they didn't want to taint any
subsequent physical lineup if one was requested or, you know, in-court identification or
something to that effect." The court denied Larkin's motion for a mistrial, reasoning: "It
does seem clear that, certainly, Ms. Demattia talked to Mr. Blatt and communicated
something to this effect to him, since it would be highly unusual, I think, in a case like
this not to call the victim at the preliminary hearing . . . . [N]ot only did [Demattia] testify
that she told [Blatt] something about this, but she testified that it was in the context of an
explanation as to why the victim would not be called at the hearing and, certainly, that
makes sense. . . . [¶] Part of the problem, I think, stems from the fact that the differences
in terms of the wording are extremely minor. It might have significant differences to the
defense as to exactly how it's worded, but the differences in the wording itself are very
minor . . . . [¶] But I was trying to listen carefully to when the court reporter read it back
as to what Ms. Demattia actually said; and she said it in several different ways. I mean,
at times she said she told me that she wanted to look at pictures because she thought she
could identify somebody, and at other times she said she told me she wanted to look at
the pictures because she had recognized somebody and she just hadn't told anybody. [¶]
So she worded it in different ways during the course of her testimony here at trial.
Whether all those different ways were said during her interview with [defense counsel]
Ms. Many or not, I have no idea; but I don't think at this point in time that it is something
that rises to a level of a mistrial if that, in fact, was the intent of the defense bringing it to
the court's attention." The court also noted "that the defense counsel did call Detective
Clifford during the trial, who substantially contradicted Lori's testimony about what she
told him immediately afterwards. . . . [¶] So, certainly, defense counsel had corroboration

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for that way of wording it. . . . [I]t's frustrating and it's a problem, but I don't think it rises
to the level of mistrial given the entire state of the evidence at this time."
B.
Analysis
We review the trial court's denial of Larkin's mistrial motion for an abuse of
discretion. (People v. Valdez (2004) 32 Cal.4th 73, 128.) A motion for mistrial should
not be granted unless the defendant's "'chances of receiving a fair trial have been
irreparably damaged.' [Citation.]" (Ibid.) The court plainly did not abuse its discretion
here. As the court noted, Larkin presented evidence contradicting Demattia's testimony
that Lori said she could identify the suspect. Larkin's identification expert also testified
that Lori' late identification was not credible. In any event, Detective Gordon testified
that Lori had told him a week before her testimony that she knew the suspect was
depicted in the bottom center photograph of the six-pack, even though she had only seen
the six-pack once in October 2004. In light of this evidence, the court did not abuse its
discretion in concluding that Larkin's chances of receiving a fair trial had not been
irreparably damaged by Demattia's testimony that Lori had said she could identify the
suspect.
We also review the court's refusal to instruct the jury on late discovery for
an abuse of discretion. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) As we have
explained, Larkin was not prejudiced by the late discovery of Demattia's testimony
because he was given the opportunity to present opposing evidence and was given access
to all of the witnesses. Besides, Demattia also testified that she had told Larkin's prior
attorney about Lori's statement, so it is unclear whether the prosecution even failed to
comply with the discovery requirements of section 1054.5, subdivision (b). Accordingly,
it cannot be said that the court abused its discretion in refusing to instruct the jury that the
prosecution had violated its duty to provide reciprocal discovery.

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IV.
Ineffective Assistance of Counsel
Larkin claims that his trial attorney provided constitutionally ineffective
assistance by failing to call his former attorney James Blatt as a surrebuttal witness.
According to Larkin, Blatt's testimony was necessary to rebut Demattia's testimony that
Lori had told her she could identify the suspect from the six-pack. We disagree.
"A meritorious claim of constitutionally ineffective assistance must
establish both: '(1) that counsel's representation fell below an objective standard of
reasonableness; and (2) that there is a reasonable probability that, but for counsel's
unprofessional errors, a determination more favorable to defendant would have resulted.
[Citations.] If the defendant makes an insufficient showing on either one of these
components, the ineffective assistance claim fails. . . ."'" (People v. Holt (1997) 15
Cal.4th 619, 703; Strickland v. Washington (1984) 466 U.S. 668, 687-694.) "To the
extent the record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment 'unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation . . . .' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 333.) We
presume that counsel's conduct "'. . . falls within the wide range of reasonable
professional assistance' [citations], and we accord great deference to counsel's tactical
decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in
the '"perilous process"' of second-guessing counsel's trial strategy." (People v. Frye
(1998) 18 Cal.4th 894, 979.)
Larkin's ineffective assistance claim fails on both prongs. Because the
record is silent as to why counsel decided not to call Blatt as a witness, we cannot
speculate about her reasons for doing so. (People v. Bolin, supra, 18 Cal.4th at p. 333.)
Besides, there is no indication that Blatt would have been able to rebut Demattia's
testimony. Counsel indicated that she may have misunderstood what Blatt had told her.
Counsel may have also considered Blatt's testimony unnecessary in light of Detective

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Gordon's preliminary hearing testimony, which was read to the jury, indicating that Lori
said she would not be able to identify the suspect's face. Lori's testimony was also
undermined by Detective Clifford, who testified that Lori never called him to say she was
ready to make an identification as she had claimed. In any event, Larkin fails to
demonstrate that he was prejudiced by his attorney's failure to call Blatt as a witness.
Overwhelming, uncontradicted testimony independent of Lori's identification established
that Larkin was her assailant. Because Larkin cannot show a reasonable probability that
the result of the proceeding would have been different had Blatt been called to testify, his
claim of ineffective assistance necessarily fails.
V.
Upper Term
Larkin also contends the trial court sentenced him to the upper term based
on facts that were neither admitted by him or found true by the jury, in violation of
Cunningham v. California, supra, 127 S.Ct. 856. We disagree.
At sentencing the trial court may consider the fact of a defendant's prior
conviction without submitting that prior conviction to a jury. (Apprendi v. New Jersey
(2000) 530 U.S. 466, 490 ["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"].) The California Supreme
Court has construed the Apprendi prior conviction exception broadly to include "not only
the fact that a prior conviction occurred, but also other related issues that may be
determined by examining the records of the prior convictions." (People v. Black (2007)
41 Cal.4th 799, 819.) The court also concluded 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 and its progeny, any
additional fact finding 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."

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(Black, supra, at p. 812.) We are bound by these pronouncements. (Auto Equity Sales,
Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In sentencing Larkin to the upper term, the court relied in part on the facts
that Larkin was on parole at the time he committed the offense and had only been out of
prison for three months. These facts are unequivocally "related" to the fact of Larkin's
prior conviction, and are easily determined by an examination of the records of that
conviction. Accordingly, the imposition of the upper term sentence was constitutionally
authorized. (People v. Black, supra, 41 Cal.4th at pp. 812, 819.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.

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Kathryne A. Stoltz, Judge
Superior Court County of Los Angeles
______________________________
Julie Schumer, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kristofer
Jorstad, Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

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