P. v. O’Neal

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Filed 04/17/07 P. v. O’Neal CA1/4
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES O’NEAL,
Defendant and Appellant.
A112206
(Del Norte County
Super. Ct. No. CRF05-9752)
A jury convicted defendant Charles O’Neal of false imprisonment, assault by
means of force likely to produce great bodily injury, infliction of corporal injury upon a
cohabitant, and removal of a cellular telephone to prevent a call for police assistance.
(Pen. Code, §§ 236, 245, subd. (a)(1), 273.5, 591.5 [all further section references are to
this code].) The court sentenced defendant to an aggregate prison term of five years,
eight months: four years for infliction of corporal injury upon a cohabitant; one year for
assault; eight months for false imprisonment; and a concurrent 180-day jail term for
removal of a cellular telephone.
Defendant claims three instances of instructional error: (1) failure to define
assault for the jury; (2) failure to instruct on misdemeanor battery against a cohabitant as
a lesser included offense of felony infliction of injury upon a cohabitant; and (3) failure
to instruct the jury that it had to agree unanimously on the act constituting false
imprisonment. Defendant also claims, in a petition for rehearing we granted, that he was
wrongly denied a jury trial on facts used by the trial court to sentence him to an upper
term of four years for infliction of corporal injury upon a cohabitant.

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The court’s failure to instruct the jury on the definition of assault was error, as the
People concede. However, we find the error harmless because the factual question posed
by the omitted assault instruction (whether defendant threatened physical force) was
resolved adversely to defendant under other properly given instructions when the jury
found defendant guilty of inflicting corporal injury (applying physical force) upon a
cohabitant. We find no error in the court’s decision not to instruct on a lesser included
offense of simple battery without injury because uncontroverted evidence established that
the victim suffered injury. We conclude that no unanimity instruction was required
because the false imprisonment was not a series of discrete acts but a continuous course
of conduct. Finally, we reject defendant’s claim of sentencing error because imposition
of the upper term was based on the fact of a prior conviction, and determination of that
fact need not be submitted to a jury. Accordingly, we affirm the judgment.
I. FACTS
Defendant and Kathleen Brown met in the summer of 2004, and moved in together
in March 2005. Defendant’s conviction is based on events occurring on September 4,
2005, but those events are connected with earlier episodes of violence that Brown
described for the jury. Brown explained that she decided to leave defendant in May
2005, and packed her belongings in her van. Defendant entered the van, where he choked
her, threatened her with a knife, “pinned” her in the back of the van, and “basically held
[her] against [her] will until the next morning when [she] was able to call the Crescent
City Police Department and get them to come and rescue [her] from [defendant].” After
the attack, Brown presented a letter to the district attorney’s office in which Brown said:
“I am tired of being kicked, pushed, choked, slapped, threatened and abused. Eventually
he’s going to succeed in killing me.” Defendant was arrested and jailed until July 2005.
During defendant’s incarceration, Brown became involved with another man and
decided to move to Palm Springs. Defendant began calling Brown’s cellular telephone
within a day of his release in July 2005, and Brown met with defendant. Brown testified
that she did not want contact with defendant but was afraid to refuse him. Brown said

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that defendant threatened her parents, children, and friends. Defendant once told Brown
“he was going to skin [her] 13-year-old son and have it delivered to [her] if [she] did not
do what he wanted.” Brown testified at the October 2005 trial that “still to this day I’m
terribly afraid of Mr. O’Neal and what he has done in the past and what he’s capable of
doing if I don’t do exactly what he says.”
When Brown left in her van for Palm Springs in August 2005, defendant insisted
on traveling with her. Brown complied but persuaded defendant to shower at a Los
Angeles County rest stop en route, then drove away and left him there. Defendant
repeatedly called Brown’s cellular telephone over the next few days, and demanded his
belongings from the van. Brown agreed to meet defendant at a Palm Springs area
market. Brown thought she would be safe in a public place but defendant was in a rage.
Brown testified: “He got into the van. And it started all over again. I was assaulted. I
was made to do what he wanted.” Brown remained in defendant’s control until late that
night, when she convinced him to let her use a store’s bathroom. Brown found a broken
lip liner pencil in the garbage and wrote a note saying she “was being held in the van
against [her] will and to please call 9-1-1.” The note was given to store security and the
police were called. Defendant was taken to jail, and Brown was taken to the hospital
where she was treated for injuries from defendant’s attack: a bloodied nose, bruises, and
contusions and scratches on her face, neck, and legs.
The next morning, Brown learned that defendant had been released from jail and
had taken her van. Defendant said he would lead Brown to the van, but they walked for
miles in 138 degree heat before locating it. Brown was hospitalized again, this time for
dehydration. Defendant stayed with Brown at the hospital and continued to threaten her.
Brown asked a hospital worker for help, and defendant was arrested. Brown drove home
to Crescent City alone. Brown testified that she went home “to get [her] restraining order
straightened out so hopefully this would have all been over.”
The crimes at issue in this appeal occurred in September 2005, after Brown’s
return to Crescent City. Brown, despite her history with defendant, again agreed to meet
with him. Defendant said he wanted some things from the van, and Brown met him at a

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bar. Defendant threatened Brown “with all the horrible things he’d been threatening to
do for a year” if she did not cooperate. Brown testified: “At that moment I was right
back underneath his custody and control. I don’t know any other way to put it.” Brown
and defendant drank at the bar, with Brown paying. Brown had over $1,300 in cash she
planned to use to get an apartment in another town.
Defendant and Brown left the bar to get the van. They drove around town and
then went to a restaurant where defendant worked. They were in the van in the rear
parking lot when defendant demanded her money and told her to pull herself together
because they were going to get something to eat at the restaurant. Brown gave him all
her money. Brown testified that she did not care about the money or anything else at that
point; she just wanted to get away. They “struggled” as Brown tried to get out of the van
and away from defendant. Defendant grabbed Brown by her hair and arm, then her
throat, and threw her into the back of the van. Defendant hit Brown in the face with the
back of his hand several times, then “pinned” her on the bed in the van’s rear
compartment. He put his hands around her throat and choked her until she thought she
would black out. Brown testified: “I honestly didn’t think I was going to live through
that night.”
At this point, a restaurant waitress came out to investigate. The waitress, Ruby
Ann Smith, testified at trial. Smith said it was about 2:00 a.m. on September 4, 2005,
when a restaurant cook told her a woman was crying in a van behind the restaurant.
Smith pretended to take a cigarette break outside, to “see if everything was okay.” Smith
approached the van and recognized defendant as a coworker. Smith heard a woman
crying in the van and asked if everything was okay. Defendant told Smith everything
was “fine” and that Brown was “drunk” and “just upset.”
Smith looked inside the van and saw Brown crying hysterically in the back of the
van. Smith had never seen Brown previously. Smith offered Brown water, and
defendant requested a soda and cigarette for her. Smith went into the restaurant and
returned with water and a soda. Smith asked Brown to come out of the van to an alcove
with chairs where she could smoke a cigarette. Brown left the van and defendant

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followed her and sat next to her in the alcove. Smith wanted defendant to “just let
[Smith] talk” to Brown but defendant insisted on explaining Brown’s condition.
Defendant said that Brown was upset because she got drunk and lost $1,300 at a bar.
Defendant said he made her leave the bar for the restaurant and, in an effort to “calm her
down,” pushed her down in the back of the van and choked her. Meanwhile, within
minutes of leaving the van, Brown ran away as she continued to cry hysterically. Smith
and defendant followed Brown, as Smith tried to “to find out what was going on.”
Smith caught up with Brown and, thinking that maybe Brown did have too much
to drink, brought her into the restaurant for something to eat. Defendant followed and sat
in a booth across the table from Brown as Smith took their food order. Smith placed their
order with the kitchen and returned to find defendant seated next to Brown, pushing
Brown so that her head smacked up against the side of the booth. Smith testified that
Brown’s head was “smacking like she was a rag doll,” and she was saying to defendant
“whatever you say Charlie. Whatever you say. . . . [J]ust please stop.” Smith told
defendant to stop and to return to his side of the booth. Brown asked for a cigarette, and
Smith took her outside to smoke.
As soon as they were outside, Brown ran away and defendant pursued her. Smith
told defendant to stop and let Brown go. Defendant grabbed Brown by her arms, then
pushed her against a wall and threw her to the ground. Smith repeatedly asked defendant
to stop and tried to get in between him and Brown as defendant dragged Brown by her
hair or neck to the van. As they reached the van, Brown got in and locked the door with
defendant outside. Defendant had the keys and unlocked the door, as Brown tried to
escape out the other side. Defendant grabbed Brown and dragged her back into the van
kicking. Smith warned defendant she would call the police, and Brown started screaming
to call 9-1-1. Smith dialed 9-1-1 on her cellular telephone and was speaking to the police
when defendant grabbed the telephone from her hand and ended the call.
Defendant dragged Brown by her hair and arm toward sand dunes behind the
restaurant. Brown was struggling to get away, and Smith “was afraid for her.” Smith
telephoned the police again, and ran after the couple. Defendant again took Smith’s

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telephone. Defendant ended the call and dropped the telephone in the sand. Defendant
reached the dunes with Brown and had her on the ground in the weeds when the police
arrived. Defendant ran away, and Brown was taken to the hospital where she was treated
for cuts and bruises to her face, neck, arms, and legs. Her injuries were documented by
photographs, which show red marks around her throat, a dislocated finger, and bruises on
her arms and face.
Brown’s testimony about events at the restaurant was generally consistent with
Smith’s testimony. However, Brown added that defendant threatened to slit her throat
when dragging her to the sand dunes. It was also established at trial that Brown was
diagnosed in 1997 with “[b]ipolar disorder and generalized anxiety disorder and acute
panic attacks.” On cross-examination, Brown admitted being charged in the past with
theft and forgery.
The defense presented several witnesses in an effort to discredit Brown.
Defendant’s former girlfriend testified that defendant and Brown were both at the bar on
the night of September 3, 2005, but they were not there together. The former girlfriend
also said that Brown was drunk and standing outside the bar handing money to people. A
friend of defendant’s was also at the bar, and he testified that defendant did not command
Brown to do anything. The manager of the restaurant where defendant worked testified
that he was familiar with defendant and Brown as a couple, and that it was Brown who
was “in charge, the boss, cut and dried.” According to the manager, Brown “wore the
pants” in the relationship. Defendant’s mother testified that Brown professed love for
defendant in August 2005, despite a previous “confrontation” between the two. The
mother conceded that her conversation with Brown was over the telephone, and it was
defendant who initiated the call. On cross-examination, the mother admitted that
defendant was violent with his first wife.
The jury convicted defendant of false imprisonment, assault by means of force
likely to produce great bodily injury, infliction of corporal injury upon a cohabitant, and
removal of a cellular telephone to prevent a call for police assistance. (§§ 236, 245,

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subd. (a)(1), 273.5, 591.5.) The jury acquitted defendant of robbery, making criminal
threats, and stalking. (§§ 211, 422, 646.9, subd. (a).) Defendant appeals.
II. DISCUSSION
Defendant claims three instances of instructional error: (1) failure to define
assault for the jury; (2) failure to instruct on misdemeanor battery against a cohabitant as
a lesser included offense of felony infliction of injury upon a cohabitant; and (3) failure
to instruct the jury that it had to agree unanimously on the act constituting false
imprisonment. Defendant also claims that he was wrongly denied a jury trial on facts
used by the trial court to sentence him to an upper term of four years for infliction of
corporal injury upon a cohabitant. We turn to a discussion of each claim.
Failure to define assault for the jury
The court instructed the jury that defendant was accused of assault by means of
force likely to produce great bodily injury, and defined great bodily injury. (CALJIC
No. 9.02.) However, the court neglected to administer the jury instruction defining
assault as a threatened application of physical force. (CALJIC No. 9.00.) The People
concede that the court erred. It is well established that “ ‘[t]he legal definition of an
assault is not one commonly understood by [persons] familiar with the English language.’
Therefore, in all cases in which a defendant is charged with simple assault or aggravated
assault, CALJIC No. 9.00 which defines assault, or an equivalent instruction must be
given sua sponte by the trial judge.” (People v. Valenzuela (1985) 175 Cal.App.3d 381,
393, overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 484, 490
fn. 12 (Flood).)
While the parties agree on the existence of the error, they dispute the
consequences of the error. Defendant insists that the error is reversible per se while the
People maintain that reversal is not required because the error was harmless beyond a
reasonable doubt. While there is some uncertainty about the standard of prejudice
applicable to an instructional error that omits multiple elements of an offense, we believe
that such an instructional error is a trial error subject to harmless error analysis. When

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evaluating the consequences of an error, the relevant question is whether the error is a
structural error (requiring automatic reversal) or a trial error (subject to harmless error
analysis). (Neder v. United States (1999) 527 U.S. 1, 7-15.) Structural errors “comprise
a very limited class of cases” and “have been found where there was a complete denial of
counsel [citation], where the trial judge was biased [citation], where there was racial
discrimination in the selection of the grand jury [citation], where there was a denial of
self-representation [citation], where there was a denial of a public trial [citation], and
where the reasonable doubt instruction was defective.” (People v. Magee (2003) 107
Cal.App.4th 188, 193-194.) Harmless error analysis is utilized where improper
instructions have been given on an element of an offense. (Flood, supra, 18 Cal.4th at
pp. 492-503; People v. Magee, supra, at p. 194.)
Defendant acknowledges that failure to instruct on one element of an offense is
subject to harmless error analysis but argues that failure to instruct on all, or most,
elements of the offense is a structural error compelling automatic reversal. The argument
relies on old precedent (People v. Cummings (1993) 4 Cal.4th 1233, 1311-1315) that has
been eclipsed by more recent authority. Both the United States and California Supreme
Courts have clearly stated that the failure to instruct a jury on the statutory elements of an
offense is a trial error subject to harmless error analysis. (Neder v. United States, supra,
527 U.S. at pp. 7-15; Flood, supra, 18 Cal.4th at pp. 492-503; accord Mitchell v. Esparza
(2003) 540 U.S. 12, 16.) We recognize that neither high court has had occasion to review
a case involving the omission of most elements of an offense, as opposed to a single
element, from jury instructions. However, we believe that the omission of statutory
elements of an offense, whether of one or multiple elements, is fundamentally a trial error
and differs markedly from the limited class of constitutional errors that defy harmless
error analysis.
We therefore turn to the question of whether it appears beyond a reasonable doubt
that the omission of an instruction on the elements of assault did not contribute to this
jury’s verdict. (Flood, supra, 18 Cal.4th at pp. 504.) An instructional error is harmless
where the verdict returned by the jury demonstrates that the jury necessarily found the

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omitted elements in connection with other findings required by the instructions. (See id.
at p. 506.) Here, the jury’s finding that defendant inflicted corporal injury upon a
cohabitant plainly demonstrates that the jury necessarily found the elements of assault.
Assault is the attempted or threatened application of physical force, and infliction of
corporal injury on a spouse is the completed application of physical force with resulting
bodily injury. (CALJIC Nos. 9.00, 9.35.) In finding defendant guilty of applying
physical force, the jury necessarily found that he attempted the application of force. (See
People v. Simington (1993) 19 Cal.App.4th 1374, 1381 [failure to define assault harmless
where jury found defendant guilty of battery].) It is thus clear beyond a reasonable doubt
that the jury would have found defendant guilty of assault if instructed on the elements of
the offense.
Failure to instruct the jury on misdemeanor battery
Defendant contends that the trial court erred in failing to instruct the jury on
misdemeanor battery on a cohabitant (§ 243, subd. (e)(1)) as a lesser, necessarily
included offense of felony infliction of corporal injury on a cohabitant (§ 273.5). The
contention is without merit as the lesser offense was not supported by the evidence.
What separates the greater from the lesser offense is the infliction of corporal injury or a
“ ‘traumatic condition,’ ” which is defined as “a condition of the body, such as a wound
or external or internal injury, whether of a minor or serious nature, caused by physical
force.” (§ 273.5, subd. (c).) Unlike some other felonies, which require serious or great
bodily injury, the felony at issue here is established by the infliction of even minor injury,
including facial redness and soreness caused by slapping. (People v. Wilkins (1993) 14
Cal.App.4th 761, 771.)
There was uncontroverted evidence that Brown was injured. Brown and the
independent witness, Smith, both testified that Brown had cuts and bruises from the
attack. Photographs of Brown, admitted in evidence at trial, also document her injuries.
On appeal, defendant points to evidence that Brown drank alcohol on the night in
question, and claims that the jury could infer that her injuries were self-inflicted through

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drunkenness. Any inference of self-inflicted injuries would be a product of imagination,
not evidence. While Brown’s consumption of alcohol was undisputed, there was no
evidence that Brown fell, bumped into walls or did anything else in a state of inebriation
that would account for the injuries she suffered. The only evidence of physical force
applied to Brown was the evidence of defendant’s attack. Brown’s injuries included red
marks on her throat consistent with her report that defendant choked her with his hands,
and inconsistent with a self-inflicted accident. On this state of the evidence, the trial
court was not required to instruct the jury on simple battery on a cohabitant (§ 243,
subd. (e)(1)) as a lesser included offense of infliction of corporal injury on a cohabitant.
Failure to provide a unanimity instruction
Defendant next asserts that the trial court was obligated to instruct the jurors that
they had to agree unanimously on the act constituting false imprisonment. (See CALJIC
No. 17.01.) “When the evidence tends to show a larger number of distinct violations of
the charged crime than have been charged and the prosecution has not elected a specific
criminal act or event upon which it will rely for each allegation, the court must instruct
the jury on the need for unanimous agreement on the distinct criminal act or event
supporting each charge.” (People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) No
instruction is required, however, “ ‘if the case falls within the continuous course of
conduct’ ” exception, such as “ ‘when the acts are so closely connected that they form
part of one and the same transaction, and thus one offense.’ ” (Ibid.)
Acts closely connected in time, location, and objective have been found to form a
single transaction. (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294-1296.) In
Haynes, this District Court of Appeal concluded that no unanimity instruction was
required where the evidence showed that defendant assisted a robbery in a parking lot,
then pursued the victim for several blocks and accosted the victim a second time to obtain
the rest of the cash that had been torn during the first encounter. (Id. at pp. 1286, 1294-
1296.) In finding a single transaction, the court noted that “[t]he two encounters were
just minutes and blocks apart and involved the same property. The acts were successive,

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compounding [and] part of a single objective of getting all the victim’s cash.” (Id. at
p. 1296.)
Here, too, the evidence showed acts closely connected in time, location, and
objective related to defendant’s false imprisonment of Brown. On appeal, defendant
argues that there were four distinct acts of false imprisonment: (1) confining Brown in
the van at the restaurant parking lot; (2) blocking Brown’s exit from the restaurant booth;
(3) holding Brown by the arms in front of the restaurant; and (4) restraining Brown near
the sand dunes behind the restaurant. Defendant’s argument does nothing more than
impose an arbitrary division on a single transaction. All of the acts occurred within an
hour, were located in or around the restaurant, and furthered defendant’s aim to control
Brown. No unanimity instruction was required.
Sentencing
California’s determinate sentencing law generally “prescribes three precise terms
of imprisonment—a lower, middle, and upper term sentence.” (Cunningham v.
California (2007) ___ U.S. ___, 127 S.Ct. 856, 861 (Cunningham).) The middle term is
imposed “unless there are circumstances in aggravation or mitigation of the crime,” as
determined by a judge. (§ 1170, subd. (b).) The United States Supreme Court recently
held that the middle term is the maximum sentence that may be imposed by a judge
unless an aggravating factor is proved to the jury beyond a reasonable doubt or is
established by the defendant’s admissions or prior convictions. (Cunningham, supra, at
pp. 868-871.) The holding is an application of the high court’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.’ ” (Id. at p. 868, quoting Apprendi v. New Jersey (2000) 530 U.S. 466,
490.) Cunningham found that the middle term, and not the upper term, of California’s
sentencing triad is the relevant statutory maximum and disapproved the California
Supreme Court’s contrary holding in People v. Black (2005) 35 Cal.4th 1238, 1254-1261.
(Cunningham, supra, at pp. 868-871.)

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The United States Supreme Court’s Cunningham decision was issued on January
22, 2007, three days before we issued our original opinion in defendant O’Neal’s appeal.
Defendant’s appellate briefing never questioned his sentence. After we issued our
opinion, defendant filed a petition for rehearing that raised, for the first time, a challenge
to the trial court’s imposition of an upper term sentence on defendant’s conviction for
infliction of corporal injury on a cohabitant. The People argue that defendant forfeited
his sentencing claim by failing to raise it on appeal. While Cunningham was decided in
January 2007, after the appeal was briefed and submitted, the People contend that the
continuing validity of California’s sentencing law became an “open question” when the
United States Supreme Court took Cunningham under review in February 2006.
Whatever the merit of the People’s argument, we have elected to review defendant’s
sentence given the significant issues at stake and the inefficiency of passing on a claim of
error that would reoccur in a petition for a writ of habeas corpus. We therefore granted
rehearing on February 26, 2007, and now consider defendant’s sentencing claim.
A felony conviction for infliction of corporal injury on a cohabitant carries a
prison sentence of two, three, or four years. (§ 273.5, subd. (a).) The trial court imposed
the upper term upon finding several circumstances in aggravation of the crime, and none
in mitigation. Specifically, the court found that defendant has “engaged in violent
conduct that indicates a serious danger to society”; that his “prior convictions as an adult
or sustained petitions in juvenile dependency proceedings are numerous or of increasing
seriousness”; and that he “has served a prior prison term.” (Cal. Rules of Court, Rule
4.421, subds. (b)(1), (b)(2), (b)(3).) The court’s findings were based on documentary
records that included a 20-page rap sheet showing multiple assault convictions and other
offenses, with prison incarceration.
The People note that two of the three factors used to impose the upper term
(numerous prior convictions and having served a prior prison term) relate to defendant’s
prior convictions. California, and a number of other jurisdictions, have held that no jury
trial right exists on either the precise fact of a prior conviction or the broader but related
fact of recidivism. (People v. McGee (2006) 38 Cal.4th 682, 695-709; People v. Thomas

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(2001) 91 Cal.App.4th 212, 215-223.) The United States Supreme Court seems to have
reaffirmed this principle in Cunningham, where the court expressly endorsed a judge’s
use of prior convictions to impose an upper term. (Cunningham, supra, 127 S.Ct. at
pp. 860, 868.)
Defendant disputes this interpretation of Cunningham, and maintains that the prior
conviction exception to the jury guarantee is no longer viable or, at the least, is limited to
the precise fact of a prior conviction. The aggravating facts found by the court here,
argues defendant, extend beyond the fact of a prior conviction and include a
determination that the prior convictions were numerous or of increasing seriousness.
Defendant argues that even the prior prison term finding involves more than a showing of
a conviction because not every conviction results in a prison commitment.
The issues defendant raises are now pending in the California Supreme Court.
(E.g. People v. Hernandez, review granted Feb. 7, 2007, S148974.) Until we receive
further direction from our high court, we are bound by existing precedent. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,455.) The California Supreme Court
has previously rejected the argument advanced by defendant that the prior conviction
exception is not viable or must be narrowly construed. (People v. McGee, supra, 38
Cal.4th at pp. 695-709.) In McGee, the court held that a defendant has no right to a jury
trial on whether his prior conviction from another jurisdiction qualifies as a serious
felony conviction under California’s three strikes law. (Id. at p. 709.) In so holding, the
California high court cautioned against dismissing the viability of the prior conviction
exception without a clear directive from the United States Supreme Court, and approved
of cases finding that the exception covers questions relating to recidivism, not merely the
fact of prior conviction. (Id. at pp. 700-709.) This state precedent is not undermined by
Cunningham, which did not depart from the United States Supreme Court’s recognition
of the prior conviction exception. Indeed, Cunningham reiterated the prior conviction
exception. (Cunningham, supra, 127 S.Ct at pp. 860, 868.)
We conclude that, of the three aggravating factors considered by the trial court in
this case, two were recidivist factors for which no jury trial was required. Defendant has

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prior convictions that are numerous or of increasing seriousness, and he served a prior
prison term. A single aggravating factor will support an upper term sentence. (People v.
Osband (1996) 13 Cal.4th 622, 728-729; People v. Cruz (1995) 38 Cal.App.4th 427,
433.) The trial court’s error in relying on an additional aggravating factor to impose an
upper term sentence was therefore harmless. (Washington v. Recuenco (2006) ___ U.S.
___, 126 S.Ct. 2546, 2551-2553 [denial of jury trial on sentencing factor subject to
review for prejudice].)
III. DISPOSITION
The judgment is affirmed.
_________________________
Sepulveda, J.
We concur:
_________________________
Ruvolo, P. J.
_________________________
Rivera, J.

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