P. v. Daniels

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Filed 12/7/07 P. v. Daniels CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CLARENCE DANIELS et al.,
Defendants and Appellants.
C052984
(Super. Ct. Nos.
05F03867, 05F04126)
Convicted of a number of counts of robbery and burglary,
defendants Clarence and Tyron Daniels appeal,1 arguing:
(1) there was insufficient evidence to support their convictions
of robbing J. C. (count 2); and (2) the trial court erred in
imposing the upper term for robbery (count 1) based on facts not
found by a jury or admitted by them. Clarence also argues that
his conviction for possession of stolen property (count 5) must
be reversed because he was convicted of stealing the same
1 Because defendants have the same last name, we will refer
to them by their first names for simplicity and to avoid
confusion.

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property and that his abstract of judgment must be amended to
reflect a concurrent sentence on one of his burglary convictions
(count 4).
Agreeing with Clarence’s latter two arguments, we will
reverse his conviction for possession of stolen property (count
5) and direct the trial court to correct the abstracts of
judgment for both defendants to reflect concurrent sentences on
count 4. Finding no merit in defendants’ remaining arguments,
we will affirm the judgments in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
As relevant here, the evidence showed that in May 2005,
three men robbed King Jewelers at gunpoint. Present in the
store at the time were the owner, his 12-year-old daughter
(J. C.), and an employee.
In December 2005, defendants (and another individual2) were
charged by amended consolidated information with three counts of
robbery (counts 1 through 3) -- one count for each of the
persons present in the store. Defendants were also charged with
burglary (count 4), and Clarence was charged with possession of
property stolen from King Jewelers (count 5). The information
also contained two more counts of robbery (counts 6 and 8) and
two more counts of burglary (counts 7 and 9) against Clarence
relating to other incidents not directly at issue here. Counts
6 and 7 were also charged against Tyron, but counts 8 and 9 were
2 Because only Clarence and Tyron are before us on appeal, we
do not discuss the third culprit further.

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not. The information also contained various enhancement
allegations.
Following trial in April 2006, a jury found both defendants
guilty of counts 1 through 4 and found Clarence guilty of
count 5. The jury found both defendants guilty of counts 6 and
7, but were unable to reach a verdict against Clarence on
counts 8 and 9, and the trial court declared a mistrial on the
latter counts (which were later dismissed).
As relevant here, the trial court chose count 1 as the
principal term for both defendants and imposed the upper term of
five years on both of them based on various aggravating
circumstances the court found to exist. The trial court also
imposed but stayed sentence on both defendants as to count 4
without stating whether the sentences were concurrent or
consecutive. Finally, the court imposed a consecutive, stayed
sentence on Clarence for count 5. Ultimately, Clarence received
an aggregate prison term of 28 years and Tyron received an
aggregate term of 25 years. Both defendants filed timely
notices of appeal.
DISCUSSION
I
Sufficiency Of The Evidence: Robbery Of J. C.
Both Clarence and Tyron challenge the sufficiency of the
evidence to support their convictions of robbing J. C. during
the robbery at King Jewelers (count 2) because they contend
there was no evidence any property was taken from her or that

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she was in actual or constructive possession of any of the
property taken. They are mistaken.
The People effectively concede that the testimony at trial
did not supply any evidence property was taken from J. C., but
they contend the surveillance video of the robbery, which was
admitted into evidence, “may provide sufficient evidence to
uphold the robbery of [J. C.]” To bolster their suggestion that
the video might provide the missing link, the People refer to
the recitation in the probation reports (taken from a police
report) that J. C. opened the cash register at gunpoint during
the robbery, and one of the suspects took the cash from the
register.3
In reply, Clarence does not dispute that the video may
supply what was lacking in the trial testimony; he complains
only about the People’s reference to information from a police
report that was not offered into evidence at trial. For his
part, Tyron contends he must prevail on his challenge “[u]nless
the video clearly shows J. C. opening the cash register.”
Having now reviewed the video (which the parties should
have done before filing their briefs), we find that it does
indeed supply the evidence missing from the trial testimony.
The video depicts J. C. opening the cash register for one of the
robbers, and later depicts a robber removing things from the
register. At trial, J. C.’s father testified that one of the
3 At trial, J. C. testified that she did not remember if she
did anything with the cash register during the robbery.

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things the robbers took during the robbery was cash from the
cash register.
“[I]n order to constitute robbery, property must be taken
from the possession of the victim by means of force or fear.”
(People v. Nguyen (2000) 24 Cal.4th 756, 761.) “Actual
possession requires direct physical control, whereas
constructive possession can exist when a person without
immediate physical control has the right to control the
property, either directly or through another person.” (People
v. Frazer (2003) 106 Cal.App.4th 1105, 1111-1112.)
By opening the cash register, J. C. demonstrated possession
-- actual or constructive -- of the money inside. Accordingly,
defendants’ challenges to the sufficiency of the evidence of the
robbery of J. C. (count 2) are without merit.
II
Clarence’s Conviction For Possession Of Stolen Property
Clarence was convicted of both robbing King Jewelers
(counts 1, 2, and 3) and possessing some of the property stolen
from King Jewelers (count 5). He contends -- and the People
concede -- that this was impermissible. (See Pen. Code, § 496,
subd. (a); People v. Smith (2007) 40 Cal.4th 483, 522.) We
accept the People’s concession and will therefore reverse
Clarence’s conviction for possession of stolen property
(count 5).

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III
Imposition Of Upper Term Sentences
Applying the Sixth and Fourteenth Amendments to the United
States Constitution, the United States Supreme Court held in
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]
that “[o]ther 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 [147 L.Ed.2d at p. 455].)
Under this rule, the “statutory maximum” is the maximum sentence
the trial court may impose based solely on the facts reflected
in the jury verdict or admitted by the defendant. (Blakely v.
Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the
California Supreme Court rejected a claim of Blakely error,
concluding “that the judicial factfinding that occurs when a
judge exercises discretion to impose an upper term sentence
. . . under California law does not implicate a defendant’s
Sixth Amendment right to a jury trial.” (Black I, at p. 1244.)
In Cunningham v. California (2007) 549 U.S. ___ [166
L.Ed.2d 856], however, the United States Supreme Court held that
under Blakely and other decisions, California’s determinate
sentencing law does “violate[] a defendant’s right to trial by
jury safeguarded by the Sixth and Fourteenth Amendments” to the
extent the law allows a judge to impose an upper term sentence
“based on a fact, other than a prior conviction, not found by a

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jury or admitted by the defendant.” (Cunningham, at p. ___ [166
L.Ed.2d at p. 864].)
On remand from the United States Supreme Court for
reconsideration in light of Cunningham, the California Supreme
Court recently held that “imposition of the upper term does not
infringe upon the defendant’s constitutional right to jury trial
so long as one legally sufficient aggravating circumstance has
been found to exist by the jury, has been admitted by the
defendant, or is justified based upon the defendant’s record of
prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816
(Black II).)
Here, both defendants contend the trial court violated
their rights under Cunningham by imposing the upper term
sentence for robbery (count 1). For the reasons that follow, we
disagree.
A
Tyron
The trial court sentenced Tyron to the upper term of five
years based on “multiple circumstances in aggravation,”
specifically, “that these matters involve[d] planning and
sophistication,” that Tyron was “involved in violent conduct,
which is a serious danger to society,” that Tyron had “numerous”
“sustained petitions in juvenile delinquency,” that Tyron was
“on parole when this current offense was committed,” and that

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his “prior performance on juvenile probation was
unsatisfactory.”4
Tyron first contends that an adjudication of juvenile
delinquency cannot be treated as the equivalent of a prior adult
conviction for purposes of imposing an upper term under
Cunningham because there is no right to a jury trial in a
delinquency proceeding. To support this contention, he relies
on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe).
A divided panel of the Ninth Circuit Court of Appeals held
in Tighe that “[j]uvenile adjudications that do not afford the
right to a jury trial and a beyond-a-reasonable-doubt burden of
proof . . . do not fall within Apprendi’s ‘prior conviction’
exception” and the trial court could not use them to increase
the penalty beyond the statutory maximum for the current
offense. (Tighe, supra, 266 F.3d at pp. 1194-1195.) The
dissent in Tighe concluded that because “a juvenile receives all
the process constitutionally due at the juvenile stage, there is
no constitutional problem (on which Apprendi focused) in using
that adjudication to support a later sentencing enhancement.”
(Tighe, at p. 1200 (dis. opn. of Brunetti, J.).)
In People v. Palmer (2006) 142 Cal.App.4th 724, 730
(Palmer), this court agreed with the Tighe dissent and other
California courts that Tighe was wrongly decided. (See People
4 The trial court went on to find that each of the
aggravating circumstances, considered alone, outweighed the
mitigating factor of Tyron’s youth.

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v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830
834; People v. Lee (2003) 111 Cal.App.4th 1310, 1315 1316;
People v. Smith (2003) 110 Cal.App.4th 1072, 1075 1079; People
v. Bowden (2002) 102 Cal.App.4th 387, 393 394 (Bowden); see also
U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032-1033.) In
Palmer, the defendant argued that Apprendi and Tighe barred the
use of Nevada priors for driving under the influence to enhance
his sentence. (Palmer, at pp. 726, 728.) We followed the
reasoning of Bowden, a case involving juvenile priors, which
concluded that because the Constitution permits the juvenile
court judge to adjudicate delinquency without a jury trial,
“‘“there is no constitutional impediment to using that juvenile
adjudication to increase a defendant’s sentence following a
later adult conviction.”’” (Palmer, at p. 733, quoting Bowden,
at p. 394.)
Here, Tyron’s juvenile record included sustained
allegations of grand theft, unlawful taking of a vehicle, escape
from a county facility, and attempted robbery. For the reasons
set forth above, we conclude these juvenile adjudications
qualified as “prior convictions” for purposes of Cunningham.
Nonetheless, Tyron contends the trial court violated his rights
under Cunningham by relying on more than “the simple ‘fact of a
prior conviction.’” Specifically, Tyron contends the trial
court was not entitled to impose the upper term based on the
court’s determination that his prior juvenile adjudications were
“numerous.”

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Our Supreme Court rejected this very argument in Black II.
Under that decision, the “prior conviction” exception under
Blakely and Cunningham “include[s] 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,” including whether a defendant’s prior convictions
are numerous or of increasing seriousness. (Black II, supra, 41
Cal.4th at p. 819.)
Here, in light of the four juvenile adjudications noted
above, the trial court’s imposition of the upper term did not
infringe on Tyron’s constitutional right to jury trial because
at least one legally sufficient aggravating circumstance -- the
fact that Tyron’s “prior convictions” were numerous -- was
justified based on his record of “prior convictions.”
B
Clarence
The trial court sentenced Clarence to the upper term of
five years “because . . . planning was involved, and [his] prior
performance on parole was . . . unsatisfactory to the point [he]
exhausted all of [his] available confinement time prior to being
discharged on parole.”5
5 We note that Clarence, like Tyron, was on parole from a
commitment to the California Youth Authority (now, Juvenile
Justice, Department of Corrections and Rehabilitation) as the
result of an adjudication of juvenile delinquency. Clarence
does not argue, however, that parole from a juvenile commitment
must be treated differently than parole from prison based on an
adult criminal conviction for purposes of Cunningham. In any

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Clarence acknowledges that his prior performance on parole
is “related to criminal history,” but he contends the “prior
conviction” exception under Blakely and Cunningham must be
construed narrowly and therefore does not encompass prior
performance on parole. We disagree.
“[T]he exception to the jury trial right for prior
convictions, ‘is not limited simply to the bare fact of a
defendant’s prior conviction, but extends as well to the nature
of that conviction, thereby permitting sentencing courts to
determine whether the prior conviction is the type of conviction
(for example, a conviction of a “violent” felony) that renders
the defendant subject to an enhanced sentence.’ (People v.
McGee (2006) 38 Cal.4th 682, 704, [42 Cal.Rptr.3d 899, 133 P.3d
1054].) As the McGee court explained, Apprendi distinguishes
between ‘sentence enhancements that require factfinding related
to the circumstance of the current offense, such as whether a
defendant acted with the intent necessary to establish a “hate
crime” --a task identified by Apprendi as one for the jury--and
the examination of court records pertaining to a defendant’s
prior conviction to determine the nature or basis of the
conviction--a task to which Apprendi did not speak and “the type
of inquiry that judges traditionally perform as part of the
sentencing function.” [Citation.]’ [Citation.]” (People v.
Yim (2007) 152 Cal.App.4th 366, 370-371.)
event, based on our previous conclusion that juvenile
adjudications qualify as “prior convictions” for purposes of
Cunningham, any such argument would fail.

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A defendant’s “prior unsatisfactory performance on parole”
is a “recidivism related” aggravating circumstance that “can be
determined by reference to ‘court records’ pertaining to [the
defendant’s] prior convictions, sentences and paroles.” (People
v. Yim, supra, 152 Cal.App.4th at p. 371.) As with the
determination of the number or increasing seriousness of a
defendant’s prior convictions, the determination of a
defendant’s prior performance on parole is the type of
determination “‘more typically and appropriately undertaken by a
court.’” (Black II, supra, 41 Cal.4th at p. 820.) Therefore,
Clarence’s performance on parole is a recidivism-based factor
arising from the fact of a prior conviction on which the trial
court could properly rely to impose the upper term.
The probation report here revealed that Clarence was
released on parole from the California Youth Authority in July
2002. Eighteen months later, his parole was revoked and he was
returned to custody after “numerous parole violations ranging
from absconding parole to positive tests for the use of alcohol,
negative peer association and failure to complete a substance
abuse program.” He was released on parole again in May 2004,
but “never checked in with Parole and remained on missing status
until he was arrested . . . in September 2004.” He was
ultimately discharged from parole in February 2005.
Based on these facts, the trial court could properly impose
the upper term on Clarence because his prior performance on
parole was unsatisfactory. Because the trial court properly
relied on one legally sufficient recidivism-based aggravating

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circumstance to impose the upper term, it does not matter that
the court also relied on its finding of the nonrecidivism-based
circumstance that planning was involved. (Black II, supra, 41
Cal.4th at p. 816.)
IV
Abstracts Of Judgment
In sentencing Clarence and Tyron for the burglary of King
Jewelers (count 4), the trial court failed to state whether it
was imposing the sentences on count 4 to run concurrently or
consecutively to the sentences on defendants’ other convictions.
The People concede that in the absence of such an express
determination by the trial court, the sentences must run
concurrently (see Pen. Code, § 669), and the abstracts of
judgment for both defendants -- which show the sentences on
count 4 as consecutive -- must be corrected. We accept the
People’s concession and will direct the trial court to correct
the abstracts of judgment to reflect that the sentences on
count 4 are concurrent for both defendants.
DISPOSITION
Clarence’s conviction on count 5 (possession of stolen
property) is reversed. In all other respects, the judgments are
affirmed. The trial court is directed to correct the abstracts
of judgment to reflect that the sentence for each defendant on
count 4 is concurrent, rather than consecutive, and (as to
Clarence only) to reflect the reversal of the conviction on
count 5. The trial court is further directed to forward a

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certified copy of each amended abstract to the Department of
Corrections and Rehabilitation.
ROBIE , J.
We concur:
SCOTLAND , P.J.
SIMS , J.

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