P. v. Conerly

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Filed 11/28/07 P. v. Conerly CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DOUGLAS CONERLY et al.,
Defendants and Appellants.
A113827
(San Francisco County
Super. Ct. No. 193977)
Codefendants Douglas Conerly, Clarence Webster, and Kevin Jones appeal from
judgments entered following a joint jury trial convicting them of three counts of second
degree robbery among other things and sentencing Jones and Conerly to 20 years and
Webster to 17 years in state prison. Defendants attack their judgments on numerous
grounds, only one of which is meritorious. As the Attorney General acknowledges,
defendants were improperly convicted of receiving the property they stole during the
robberies for which they were convicted. Accordingly, we vacate defendants’ convictions
for receiving stolen property and affirm the judgments in all other respects.
Factual and Procedural History
On December 7, 2004, an information was filed against Conerly, Webster, Jones
and a fourth defendant, Edwina Traylor, charging defendants with three counts of second
degree robbery (Pen. Code,1 § 212.5, subd. (c)), one count of receiving stolen property
(§ 496, subd. (a)) and one count of misdemeanor possession of a loaded firearm in a
1 All statutory references are to the Penal Code unless otherwise indicated.

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public place (§ 12031, subd. (a)(1)). Traylor was also charged with an additional count of
carrying a concealed weapon (§ 12025, subd. (a)(1)). The information alleged further that
Webster personally used a firearm in the commission of one of the robberies (§ 12022.53,
subd. (b)) and, as to the remaining defendants, that a firearm was used in the commission
of the offense (§ 12022, subd. (a)(1)). The information also alleged that Jones had
suffered two prior convictions within the meaning of sections 667, subdivisions (d) and
(e) and 1170.12, subdivisions (b) and (c) and that he had suffered two prior serious felony
convictions within the meaning of section 667, subd. (a). The information alleged that
Conerly had suffered one prior conviction within the meaning of sections 667,
subdivisions (d) and (e) and 1170.12, subdivisions (b) and (c), one prior serious felony
conviction within the meaning of section 667, subdivision (a), and one prior conviction
within the meaning of section 667.5, subdivision (b).
Evidence of the following facts was presented at trial:
At 10:30 p.m. on March 23, 2004, Leonardo Caamal-Poot was attacked and
robbed by three African-American men as he was leaving work in San Francisco’s North
Beach neighborhood. One man was wearing a black jacket, one a blue jacket and the
third was wearing a knit cap. As he approached the men, the one in the blue jacket
punched him in the face. The other two grabbed him and threw him on the ground. The
men continued to beat him on the ground. The man in the black coat took his wallet from
his pants and the man in the blue jacket took his backpack. Once Caamal-Poot escaped,
he called the police. He reported that the three men got into a white four-door car that
was waiting for them less than a block away. At trial, Caamal-Poot identified Conerly as
the man who was wearing the blue jacket and Webster as the man who was wearing the
black jacket. A bystander testified that he witnessed the robbery. As he was on the phone
reporting the crime, defendants walked past him and got into a white four-door car.
Willie Rones testified that he left work at around 11:00 p.m. on March 23. Shortly
thereafter, he was approached and surrounded by three African-American men while
waiting for a bus near San Francisco’s Fisherman’s Wharf. One was wearing a black
jacket and the other a jacket with a hood. Rones’s next memory of that evening is

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awakening inside a police car, bleeding. He was missing his keys and wallet. The officer
testified that at approximately 12:30 a.m. on March 24, she found Rones “staggering and
bleeding” on a street corner.
At 12:15 a.m. on March 24, David Bain, who had just arrived from the airport and
was carrying a computer and a suitcase, was walking in downtown San Francisco when
he was approached by an African-American man with a gun. The man said, “Everything
you’ve got or you die.” As Bain put down his computer bag and suitcase, two other
African-American men approached and began collecting his property. The man with the
gun ordered him to give them his jacket, wallet and Rolex watch. After the men left, he
called the police. Later that morning, Bain was given an opportunity to identify the
defendants and recognized Webster as the man with the gun. He thought the other two
were the other men involved, but was not entirely certain. At trial, Bain again identified
Webster as the man with the gun.
Officer John Barcojo testified that at about 11:45 p.m. on March 23, he was
dispatched to the scene of a robbery. Caamal-Poot flagged him down and reported that he
had been robbed by three African-American men who drove away in a white car. Shortly
thereafter, Barcojo received a second report of a robbery that had occurred six blocks
away. As Barcojo was driving through the area, he saw a vehicle that matched Caamal-
Poot’s description. As he followed the car, he saw that it was being driven by an African-
American woman and that there were three African-American male passengers. When the
vehicle pulled into a gas station, Barcojo approached the driver and told her that there had
been a crime in the area and that her vehicle matched the description of the car used in
the crime. At the same time, Barcojo heard on his radio that a black suitcase with rollers
had been taken in the second robbery and Barcojo noticed that one of the men in the back
seat had a roller suitcase on his lap. Barcojo told the driver that he had made a mistake
and apologized for taking up their time. As the car drove from the gas station, Barcojo
followed and called for back-up. The car was stopped again a few blocks away. Inside the
car, officers located Bain’s computer bag and rolling suitcase, Caamal-Poot’s backpack

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and wallet, and Rones’s wallet and keys. Officers found a handgun inside Traylor’s purse
and later found Webster’s fingerprint on the gun.
After the prosecution rested, Traylor testified in her own defense. She stated that
she was a choir director at the Bayview Missionary Baptist church. She explained that on
the night of the robberies, Webster called and asked her to pick him up in downtown San
Francisco. Jones and Conerly were with him when she arrived. Webster told her where to
drive and park as the men got in and out of the car on a number of occasions. She denied
knowing anything about the robberies and explained that she did not question what
Webster was doing because “you don’t question him.” She also denied any knowledge of
the gun that was found in her purse.
At the close of trial, the prosecution dismissed the robbery charges against Traylor
and amended the information to charge her with being an accessory to a felony. The
misdemeanor gun charge was dismissed against all the defendants. Thereafter, the jury
found the three appealing defendants and Traylor guilty as charged. The court found that
both Jones and Conerly had suffered one prior serious felony conviction. Jones and
Conerly were sentenced to 20 years in state prison and Webster was sentenced to 17
years in state prison.
Defendants filed timely notices of appeal.
Discussion
1. There was no prejudicial Brady error.
At trial, Traylor denied having had any prior discussion with the prosecutor
regarding leniency in exchange for her testimony and denied being told that “if [she]
testified and if that testimony was truthful that [she] could receive leniency in this case.”
After the trial, however, Traylor’s attorney informed her codefendants’ attorneys that he
had sought leniency for Traylor in exchange for her testimony. His declaration states,
“When it became clear during trial that the case would not settle, I spoke with the
prosecutor . . . about my client testifying. My client wanted to testify and did not want a
cooperation agreement, and did not want to be considered an informant. I did not seek a
cooperation agreement whereby my client would be considered a cooperating witness or

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an informant. Instead, with Ms. Traylor’s approval, I asked [the prosecutor] whether if
my client testified in her own defense, and he believed my client’s testimony, would he
amend the information against my client to reflect the charges which he believed were
appropriate. [The prosecutor] stated that it would be his ethical obligation to do so, and of
course he would do it if he believed Ms. Traylor’s testimony.” Traylor was informed of
her attorney’s conversation with the prosecutor prior to testifying at the trial. Defendants
contend the prosecution’s failure to disclose the promise of leniency to Traylor and to
correct her false denial of the promise deprived them of due process.
In Brady v. Maryland (1963) 373 U.S. 83, 87, the court held that the suppression
by the prosecution of evidence favorable to an accused violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution. This rule extends to the disclosure of evidence relating to the
credibility of witnesses, including any inducements made to secure the witnesses’
testimony. (Giglio v. United States (1972) 405 U.S. 150, 154.) “Evidence is ‘material’
‘only if there is a reasonable probability that, had [it] been disclosed to the defense, the
result . . . would have been different.’ [Citations.] The requisite ‘reasonable probability’
is a probability sufficient to ‘undermine[ ] confidence in the outcome’ on the part of the
reviewing court.” (In re Sassounian (1995) 9 Cal.4th 535, 544.) “ ‘In general,
impeachment evidence has been found to be material where the witness at issue “supplied
the only evidence linking the defendant(s) to the crime,” [citations], or where the likely
impact on the witness’s credibility would have undermined a critical element of the
prosecution’s case [citations]. In contrast, a new trial is generally not required when the
testimony of the witness is “corroborated by other testimony.” ’ ” (People v. Salazar
(2005) 35 Cal.4th 1031, 1050.)
Here, any assurance of leniency was undoubtedly immaterial. As the trial court
concluded in denying defendants’ motion for a new trial based in part on this ground,
substantial evidence connects each defendant to the robberies without Traylor’s
testimony. The court explained, “I looked through the trial and I stopped before her
testimony. And, before Ms. Traylor took the stand, I think there was sufficient testimony

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presented directing each of the codefendants to the robberies. [¶] [Y]ou had Officer
Barcojo seeing the car shortly after he heard it described . . . the black suitcase with the
rollers inside, the wallet, the I.D. and the gun was in the car, the fingerprint of Mr.
Webster was in the car according to Officer Wong, and then Officer Hnatow said it was
the left index finger of Mr. Caamal-Poot. [¶] [A]ll of the identifications were somewhat
shaky, which is understandable given the circumstances. [Caamal-Poot] testified that Mr.
Webster held him down while Mr. Conerly beat on him. [¶] He identifies his wallet.
[¶] Mr. Rones identifies his, which is found in Mr. Bain’s suitcase. [¶] [M]r. Bain
testifies, somewhat uncertain on the identification, [that] Mr. Webster is the man with the
gun because he recognizes his eyes. [¶] . . . [¶] The same with Mr. Conerly, who’s
described by Officer Barcojo, new jacket, he was in the car, Mr. Caamal-Poot says he’s
the one who says, ‘Yes, we are going to take everything,’ and punched him, had his
wallet, papers, wearing his backpack. [¶] . . . Inspector Wong said that Mr. Conerly had
Mr. Rones’s I.D. and keys in his jacket. [¶] All of these took place before Ms. Traylor
took the stand. So, I don’t think that I could find that . . . another result . . . would have
been reasonably probable.”2
2. The jury was properly instructed.
The jury was instructed pursuant to CALJIC No. 2.21.2 that “A witness, who is
willfully false in one material part of his or her testimony, is to be distrusted in others.
You may reject the whole testimony of a witness who willfully has testified falsely as to a
material point, unless, from all the evidence, you believe the probability of truth favors
his or her testimony in other particulars.” Although defendants did not object to this
2 For the same reason, we reject defendants’ argument that their attorneys failed to
render effective assistance because they did not investigate and discover impeachment
evidence of Traylor’s bad character. While it is possible, as defendants suggest, that
“minimal investigation by trial counsel would have led to the discovery that Traylor’s
‘good character’ claim was a sham,” there is no reasonable probability that with such
evidence the jury “would have had a reasonable doubt respecting guilt.” (People v.
Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland v. Washington (1984) 466 U.S. 668,
693-694.)

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instruction in the trial court, they contend on appeal that the court denied them due
process of law by so instructing the jury because “the instruction permitted evaluation of
testimony of a crucial prosecution witness [Traylor] by a probability standard.”
Defendants rely on People v. Rivers (1993) 20 Cal.App.4th 1040, 1046, in which the
court indicated that “[a]n instruction which told the jury that this testimony could be
accepted based on a ‘probability’ standard is somewhat suspect” and expressed “some
concerns about the use of the instruction where it affects the crucial testimony of a sole
percipient witness.” Since Rivers was decided, however, the Supreme Court, as well as
numerous appellate courts, have rejected the argument that CALJIC No. 2.21.2 reduces
the prosecution’s burden of proof when the jury otherwise is fully instructed on the
burden of proof and told to consider the instructions as a whole. (People v. Riel (2000) 22
Cal.4th 1153, 1200; People v. Brown (1996) 42 Cal.App.4th 1493, 1502-1503; People v.
Wade (1995) 39 Cal.App.4th 1487, 1494-1495; People v. Foster (1995) 34 Cal.App.4th
766, 775.) In Riel, supra, at page 1200, the court explained, “Contrary to defendant’s
argument, nothing in People v. Rivers[, supra,] 20 Cal.App.4th 1040, casts doubt on our
upholding the standard instruction on false testimony. Even if the language ‘probability
of truth’ standing alone would be ‘somewhat suspect’ [citation] when applied to a
prosecution witness, it does not stand alone. The trial court correctly instructed the jury
on the reasonable doubt standard and told it to ‘consider all the instructions as a whole
and . . . to regard each in the light of all the others.’ The instructions as a whole correctly
instructed the jury on the prosecution’s burden of proof.” (Fn. omitted.) Likewise, in the
present case the jury was fully instructed on the burden of proof and there is no
“reasonable likelihood” that the jury misunderstood the burden of proof and believed it
could convict defendant if it simply believed Traylor’s testimony was probably true. (See,
e.g., Boyde v. California (1990) 494 U.S. 370, 380 [where an instruction is claimed to be
ambiguous and therefore subject to erroneous interpretation, the proper inquiry is whether

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there is a “reasonable likelihood that the jury has applied the challenged instruction in a
way that prevents the consideration of constitutionally relevant evidence”].) 3
3. Defendants’ convictions for receiving stolen property must be vacated.
Defendants argue, and the Attorney General agrees, that they were improperly
convicted of receiving the property stolen during the robberies for which they were
convicted. Under section 496, subdivision (a), a principal of a theft of property may be
convicted of receiving stolen property, but “no person may be convicted both pursuant to
this section and of the theft of the same property.” In People v. Allen (1999) 21 Cal.4th
846, 857, the court confirmed that section 496, subdivision (a) prohibits dual convictions
of both stealing property and receiving the same stolen property. Because robbery is an
aggravated form of theft (People v. Donnell (1976) 65 Cal.App.3d 227, 231, fn. 7),
section 496, subdivision (a) prohibits defendants’ dual convictions for the robberies in
counts one, two and three and receiving stolen property in count 4. Accordingly,
defendants’ convictions under count 4 must be vacated.4
4. Conerly was not denied effective assistance of counsel with regard to sentencing.
Conerly contends that his trial counsel rendered ineffective assistance when he
failed to make a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero) to strike his prior serious felony conviction for voluntary manslaughter. To
prevail on this claim, defendant must show that his counsel’s representation fell below an
objective standard of reasonableness under prevailing professional standards and that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at
p. 694.) We need not consider the adequacy of counsel’s representation in this case, as it
3 Contrary to defendants’ assertion, we perceive no cumulative error that requires
reversal of their convictions.
4 Modification of the judgments to vacate these convictions does not require
recalculation of defendants’ sentences. For each defendant, the court imposed and stayed
pursuant to section 654 an eight-month sentence on this count.

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is clear that Conerly was not prejudiced by his attorney’s failure to make a motion to
strike his prior conviction.
The trial court’s discretion to strike a prior strike is limited. The three strikes law
“was intended to restrict courts’ discretion in sentencing repeat offenders.” (People v.
Romero, supra, 13 Cal.4th at p. 528; People v. Carmony (2004) 33 Cal.4th 367, 377.
[Three strikes law establishes “a sentencing requirement to be applied in every case
where the defendant has at least one qualifying strike” unless the sentencing court finds a
reason for making an exception to this rule].) In order to strike a prior strike “the court in
question must consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.” (People v. Williams
(1998) 17 Cal.4th 148, 161.)
Here, Conerly’s probation report reflects that he suffered a prior serious felony
conviction for voluntary manslaughter in 1986. Prior to that, he was convicted in 1981 of
giving false information to a police officer. After his strike conviction, Conerly suffered
two parole violations in 1987 and 1990, and in 1992 he was convicted of resisting arrest.
Conerly was discharged from parole in 1994, and in 1996 he was convicted of possession
of a controlled substance. Six months later, he was convicted again of possessing a
controlled substance and receiving stolen property. Conerly was convicted a third time
for possessing a controlled substance in 1999 and after being returned to custody for a
parole violation in 2000, he was ultimately discharged from parole in 2002. As noted
above, the present robberies occurred in March 2004. Based on Conerly’s significant and
uninterrupted criminal history, had a Romero motion been made it was not likely to have
been granted. Indeed, although Conerly’s attorney did not make such a motion, the
prosecution’s sentencing memorandum raised the issue and argued persuasively why the
court should not exercise its discretion to strike the prior conviction.

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5. The trial court did not err in sentencing defendants to an upper term.
Defendants contend that, under the dictates of Cunningham v. California (2007)
549 U.S. __ [127 S.Ct. 856] (Cunningham), the imposition of the upper term on the
principal robbery count violated their Sixth Amendment right to a jury trial and their
Fourteenth Amendment right to proof beyond a reasonable doubt of aggravating factors
used to support that sentence. “In Cunningham the Supreme Court reaffirmed Apprendi v.
New Jersey (2000) 530 U.S. 466 . . . , Blakely v. Washington (2004) 542 U.S. 296 . . . and
United States v. Booker (2005) 543 U.S. 220 . . . , overruled People v. Black (2005) 35
Cal.4th 1238, and held California’s determinate sentencing law (DSL) violates a
defendant’s constitutional right to a jury trial to the extent it authorizes the trial judge to
find facts (other than a prior conviction) that expose a defendant to an upper term
sentence by a preponderance of the evidence. ‘This Court has repeatedly held that, under
the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence
must be found by a jury, not a judge, and established beyond a reasonable doubt, not
merely by a preponderance of the evidence.’ ” (People v. Velasquez (2007) 152
Cal.App.4th 1503, 1513, quoting Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at
pp. 863-864].) Since Cunningham was decided, the California Supreme Court has
decided two cases relevant to defendants’ contention. In People v. Black (2007) 41
Cal.4th 799, 816 (Black II), the court 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.” In People v. Sandoval (2007) 41 Cal.4th 825, 838-839, the court held that
the applicable test for harmless error (Washington v. Recuenco (2006) 548 U.S. __ [126
S.Ct. 2546]) is whether the reviewing court can conclude, “beyond a reasonable doubt,
that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would
have found true at least a single aggravating circumstance had it been submitted to the
jury.”

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Here, the Attorney General argues that defendants’ sentences were authorized
based on defendants’ recidivism. We consider each defendant’s sentence in turn.
A. Webster was properly sentenced to the upper term.
The trial court sentenced Webster to the upper term of five years on count 2 (the
Bain’s robbery) plus a consecutive 10-year term for the firearm enhancement and one-
third the midterm or a one year term on each of the other two robberies. The court
explained that it did not find any facts in mitigation but found the following facts in
aggravation: “the fact that this did involve great violence and bodily harm to others, the
fact that Mr. Rones, one of the victims, was particularly vulnerable because he had
suffered a stroke prior to this incident, and that both he and Mr. Poot were, you know,
subjected to a three-on-one attack are factors that the court has to consider. [¶] The fact
that also the manner in which the crime or crimes were carried out, the fact that they were
done seriatim indicates planning. [¶] Also note pursuant to [California Rules of Court,
rule 4.421], subsection (b), that Mr. Webster had been on probation previously, that there
was not successful completion of these prior probations. [¶] The court also considered
that other circumstances . . . that two of the three victims of the robbery were
unnecessarily beaten and the third, you know, was held at gunpoint.” The court’s finding
that “Webster had been on probation previously [and] that there was not successful
completion of these prior probations” within the meaning of rule 4.421(b)(5) is supported
by the record. Accordingly, under Black II, supra, 41 Cal.4th 799, we must uphold
Webster’s sentence.
B. Conerly was properly sentenced to the upper term.
Conerly was also sentenced to the upper term on count 2 plus one-third the mid
term on the remaining two robberies. The court imposed a consecutive one year term for
the firearm enhancement and consecutive terms totaling 12 years based on his prior
felony convictions. In selecting the upper term, the court explained, “There are
aggravating factors that I find, you know, great violence to others, some people were
harmed, Mr. Rones had suffered a stroke before the time of his episode, and both he and
Mr. Poot were attacked by three people, the manner in which it was carried out indicated

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[planning.] [¶] The other thing I have to look at under the Rules of Court is that your past
performance on parole wasn’t satisfactory. [¶] And the other circumstances, you know,
two of the three victims were unnecessarily beaten, the other was held by gunpoint, not
by you personally, but you were there.” As with Webster, the record supports the trial
court’s finding that Conerly’s prior performance on parole was not satisfactory under
California Rules of Court, rule 4.421(b)(1). Accordingly, under Black II Conerly’s
sentence was correctly imposed.
C. Jones was properly sentenced to the upper term.
Jones’s sentence was calculated in the same manner as Conerly’s sentence.
Although Jones’s substantial criminal history was documented in the probation
department’s sentencing report,5 the court inexplicably did not refer to his recidivism in
explaining the basis for selecting the upper term. The court referred only to the factors
relating to the crimes and the victims noted above. Had the court mentioned any of the
applicable recidivism factors in explaining its decision to select the upper term, Black II
unquestionably would have required that we uphold Jones’s sentence.
The Attorney General argues that the trial court’s failure to refer explicitly to
Jones’s criminal history was an oversight, and that the selection of the upper term was
nonetheless authorized based on Jones’s undisputed recidivism. We agree. The trial court
found true the enhancement allegation that Jones had suffered a prior strike conviction
and the court sentenced him under the provisions of the three strikes law. In so doing, the
court denied Jones’s motion to strike his prior conviction under Romero, supra, 13
Cal.4th at page 528, necessarily concluding that Jones should be sentenced as a recidivist
offender. Although the court could not use Jones’s prior strike conviction as a basis on
5 The probation officer’s report indicates that although Jones was only 22 at the
time of the sentencing hearing, he had a significant juvenile and adult criminal record.
Jones had been convicted as an adult for attempted murder (§§ 664, 187), assault with a
deadly weapon other than a firearm (§ 245, subd. (a)(1)), battery with serious bodily
injury (§ 243, subd. (b)), and second degree robbery (§ 211). The report indicates that he
was previously sentenced to two years in prison and was on probation at the time of the
present offenses.

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which to impose the aggravated term (§ 1170, subd. (b)), the court’s ruling on the
Romero motion indicates that the court would have imposed the upper term based on the
undisputed evidence of Jones’s other numerous prior convictions and the fact that he was
on probation at the time of the present offenses. Because Jones’s criminal record
necessarily exposed him to the upper term sentence, his aggravated sentence was
authorized. (Black II, supra, 41 Cal.4th at p. 815 [“under the DSL the presence of one
aggravating circumstance renders it lawful for the trial court to impose an upper term
sentence”].) In Black II, the court explained, “Cunningham requires us to recognize that
aggravating circumstances serve two analytically distinct functions in California’s current
determinate sentencing scheme. One function is to raise the maximum permissible
sentence from the middle term to the upper term. The other function is to serve as a
consideration in the trial court’s exercise of its discretion in selecting the appropriate term
from among those authorized for the defendant’s offense. Although the DSL does not
distinguish between these two functions, in light of Cunningham it is now clear that we
must view the federal Constitution as treating them differently. Federal constitutional
principles provide a criminal defendant the right to a jury trial and require the prosecution
to prove its case beyond a reasonable doubt as to factual determinations (other than prior
convictions) that serve the first function, but leave the trial court free to make factual
determinations that serve the second function. It follows 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.” (Black II, supra, at pp. 815-816.) Thus, even though the trial judge relied on
the nature of Jones’s offenses as aggravating factors in articulating his reasons for
exercising his discretion to impose the upper term, Jones’s Sixth and Fourteenth
Amendment rights under Cunningham were not violated because the upper term was
authorized as the maximum permissible sentence based on the constitutionally
established recidivism factors. (See People v. Velasquez, supra, 152 Cal.App.4th at
p. 1516 [trial court gave no reasons for imposing the upper term, but reasons relied on for

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imposing consecutive sentences could be considered to justify the imposition of the upper
term].)
Disposition
Defendants’ convictions for receiving stolen property under count four are
vacated. The judgments are affirmed in all other respects.
_________________________
Pollak, Acting P. J.
We concur:
_________________________
Siggins, J.
_________________________
Horner, J. *
* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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