Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super.Ct.No. RIF123788, Russell F. Schooling and Elisabeth Sichel, Judges.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER, J.
After a jury trial lasting four days, defendant Michael Warren Desper was convicted of receiving stolen property (Pen. Code, § 496d, subd. (a)), and was sentenced to six years in prison. On appeal he argues reversal is required because the trial court erred in admitting evidence of multiple prior bad acts and also in permitting a prosecution witness to testify regarding the contents of a police report involving one of those prior acts, and his interview with the victim. Finding no merit to either contention, we shall affirm the conviction.
With regard to his sentence, defendant has submitted a supplemental brief wherein he contends, citing Cunningham, the sentence cannot stand because it was imposed without a jury first finding aggravating factors to support the upper term. The People maintain that defendant has forfeited his claim by failing to raise an objection in the trial court. Regardless of whether this issue has been preserved for appeal, we note that Cunningham’s holding has no application where, as here, an enhanced punishment is based upon a prior conviction.
Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
Finally, the parties agree that the abstract of judgment must be amended to exclude reference to defendant’s prior convictions, which the court struck in the interest of justice pursuant to Penal Code section 1385. Accordingly, we shall strike the prior convictions and affirm the judgment as so modified.
FACTUAL AND PROCEDURAL HISTORY
At approximately 1:30 a.m. on May 23, 2005, Riverside County Deputy Sheriff Ludwing Torres was on duty in Norco when he learned that a motorcycle had been reported stolen in that locale. Upon noticing a black motorcycle entering Commerce and heading west, Torres began to follow it, and as he sped up, so did the motorcycle. Torres continued to follow the vehicle onto Industrial until the end of the street, where it turned into a driveway. As the motorcycle made its turn, Torres noticed its lights go off. He then observed the motorcycle head towards the end of the driveway and turn in a northwesterly direction, squeezing in between a medium-sized moving van and a large trash receptacle. Torres heard a crash, after which he exited his vehicle. He then saw the motorcycle and its driver, whom he identified as defendant; defendant was still seated on the motorcycle, which had crashed into the wall. According to Torres, defendant seemed “very nervous.” After defendant removed his helmet, he “dropped the motorcycle on its side and continued looking left to right, and it appeared he was looking for a way out, a way to run.” Eventually, defendant got down on the ground, after which Torres placed him into his patrol car and inspected the motorcycle. Torres indicated that the ignition had been “punched,” which he explained means “foreign objects had been used to punch a hole in [it].” Based upon his experience, Torres said it is common to steal a motor vehicle by punching its ignition.
At trial, Esteban Loya, the motorcycle’s owner, testified that his vehicle had been taken from him on May 21, 2005. When it was recovered, it was not in the same condition as when it was taken; among other things, the ignition switch had been punched.
Defendant’s sole defense was that he had purchased the motorcycle from an individual named Ekelson and had no knowledge that it was stolen. He had been referred to Ekelson by a mechanic named Engel, who sold wrecked vehicles. In the morning on May 22, 2005, defendant had stopped at Engel’s shop to inquire if Engel knew anyone interested in selling a wrecked or salvaged motorcycle. Engel said he did not. That night, however, Engel telephoned defendant to say that he knew someone named Ekelson who wanted to sell a wrecked street bike; Engel said nothing about the bike being stolen. At the time of Engel’s call, defendant was drinking beer at a bar in Norco, with friends Steven Hernandez, Jennifer Maros, and a fourth individual. Engel told defendant that Ekelson would meet him at the bar later that night to show him the bike. When Ekelson arrived, defendant went outside to examine the bike; he explained that he knows “a very lot” about motorcycles, “the love of [his] life.” He initially noticed nothing wrong with the bike, but when Ekelson said it had been wrecked, he inspected it and saw some damage to the left side. He thought the ignition looked as if it had been tampered with, but it was not “punched.” He explained that when an ignition is punched, “the whole ignition is gone.” He knew how to punch an ignition and how to start a motorcycle with something other than a key. He insisted, however, that he had nothing with him that night which would have enabled him to start the engine without a key.
Defendant said he purchased the bike from Ekelson for $1,000, which was paid in $100 bills. On a piece of paper obtained from the bartender, Ekelson wrote out a bill of sale and signed it. Ekelson told defendant that he would get him the pink slip the next day. Defendant gave the bill of sale to Maros for safekeeping, to which Maros later attested. Ekelson gave defendant one key, which defendant used to start the ignition. None of defendant’s friends went outside to look at the bike, as they were all “buzzed.” However, Hernandez and Maros both testified that while at the bar, defendant went outside several times and at one point came back and said that he had just bought a bike.
After defendant left the bar, he went to Hernandez’s home located nearby. He telephoned Engel to say he needed another helmet and then rode to Engel’s shop. En route he was followed by Torres, but insisted that he did not notice anyone following him. He denied turning off the bike’s lights as he drove into the lot, stating that it was impossible to do so. He was traveling at a moderate speed. Engel told him to park his bike between the panel truck and the trash receptacle. He parked the bike and saw no one following him. He neither crashed nor fell off the bike. As he was getting off the bike, he was held at gunpoint and told to freeze. It was Torres, who told him to “‘[r]aise [his] hands and turn around.’” He denied that he tried to run. He was nervous because a gun was pointed at his head. When he stopped the bike, the key was in the ignition; he did not know what happened to it after he was arrested. When asked by the prosecutor to explain where the key is, defendant stated, “I wish I knew where the key is. Maybe Mr. Torres could explain to you where it’s at.”
Although he acknowledged his prior convictions, defendant said he “never literally stole a motorcycle.” He admitted that in 1996 he was accused of stealing his sister’s motorcycle and that he plea bargained to keep his sister out of jail for making a false report. He also admitted that he used his sister’s bike on January 29, 2004, but insisted that he had never been instructed not to use it. He pleaded guilty to taking a vehicle without the owner’s consent because he wanted to keep his sister out of jail for making a false report. He pleaded guilty because he was unfamiliar with the criminal law and was “misled into taking a deal [he] should never have took [sic].” He was in court now only “because [he is] innocent. . . . [I]f [he] was guilty of this crime, [he] would have been a man like in the other situations and took a deal.”
The jury found defendant guilty of receiving stolen property (Pen. Code, § 496d, subd. (a)), but not guilty of vehicle theft (Veh. Code, § 10851).
Defendant then waived a jury trial on the prior convictions, after which the trial court found the allegations to be true. At sentencing, however, the court struck the prior convictions pursuant to Penal Code section 1385 and sentenced defendant to prison for the upper term of six years.
DISCUSSION
A. The trial court did not err in admitting evidence of defendant’s prior acts to prove defendant had knowledge that the motorcycle had been stolen.
Before trial, the prosecutor informed the court of his intention to introduce evidence of two of three prior motorcycle thefts committed by defendant to demonstrate that defendant knew that the motorcycle he was riding had been stolen and that he intended to deprive its owner of his property. Defense counsel acknowledged that defendant’s prior acts can be used to establish knowledge and intent, asserting, “I don’t have a big issue with [that].” However, he argued, “It’s just, why three? One is enough. I think when you get into two and three, I think you start getting more prejudicial than probative. You start getting into possible propensity in the minds of the jury.” When the prosecutor indicated he was only intending to use two of the three prior acts, the court stated: “I think two is certainly not overkill. And if he limits it to two, I think [defense counsel’s] position then loses a lot of air and deflates considerably. And I don’t see any problem with using two. I think that to cut him down to one is too much because the jury then could say, well, there is no way to show mistake or knowledge or intent. So as long as he uses two and only two, I think that’s sufficient. And you won that battle on that ground. It will be so limited.”
Riverside police officer Michael O’Boyle later testified about an incident involving defendant which occurred on July 30, 2003. After following a 2001 Suzuki motorcycle which at first had been moving slowly and weaving in its lane, and then increased its speed and made an unsafe maneuver, O’Boyle located the vehicle on the front porch of a residence and assisted in defendant’s apprehension. After reviewing a police report and interviewing the vehicle’s owner, O’Boyle determined that the motorcycle had been stolen.
Sergeant Duane Prickett of the California Highway Patrol then testified that on January 29, 2004, he observed defendant, sans shirt and helmet, driving a dirt bike on the wrong side of the road. Prickett followed defendant, whom he recognized because defendant’s name was tattooed on his back and because Prickett several days earlier had taken a stolen report concerning defendant. Prickett, who was on a motorcycle, turned on his lights and siren, but defendant did not stop. After a foot chase, Prickett apprehended defendant and recovered the motorcycle. The officer later learned that the vehicle, which belonged to defendant’s sister and which had been left in an inoperable condition, had been reported stolen.
On appeal defendant renews his objection, contending that (1) the admission of more than one prior act permitted the jury to conclude that he had a propensity for stealing motorcycles, and (2) the court misapplied Evidence Code section 352 by “fail[ing] to engage in the necessary weighing of the proffered evidence” which, he maintains, would have established that admission of multiple prior bad acts was unduly prejudicial. The essence of his argument, however, is that the court failed to balance the probative value of the “other bad acts” evidence against its prejudicial effect, as required by section 352.
All further statutory references will be to the Evidence Code unless indicated.
Section 1101, subdivision (a) generally prohibits the admission of a prior criminal act against a criminal defendant “when offered to prove his or her conduct on a specified occasion.” Section 1101, subdivision (b), however, provides such evidence is admissible when relevant to prove a fact other than the person’s character or disposition to commit such an act, such as motive, opportunity, intent, preparation, plan, or knowledge. Thus, evidence of a person’s prior acts is admissible when it logically, naturally, and by reasonable inference is relevant to show a fact at issue other than the person’s disposition to commit such acts. (People v. Kipp (1998) 18 Cal.4th 349, 369-370 (Kipp).)
Of course, before evidence of uncharged misconduct may be admitted to support specific inferences under subdivision (b) of section 1101, there must be some similarity between the charged offense and the prior conduct. (People v. Ewoldt (1994) 7 Cal.4th 380, 401-403 (Ewoldt).) “The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant “‘probably harbor[ed] the same intent in each instance.’ [Citations.]”’” (Kipp, supra, at p. 371.) Here, however, defendant does not challenge either the relevance of his prior bad acts to demonstrate that he knew he was riding a stolen motorcycle when he was apprehended by Torres or the sufficiency of the similarity of those prior acts to the charged offense.
Even if evidence is deemed admissible under section 1101, subdivision (b), it must still pass the section 352 test. That is, it may be excluded if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Ewoldt, supra, 7 Cal.4th at p. 404.) In this regard, however, “a court need not expressly state for the record it engages in a weighing process every time it makes a ruling. [Citation.]” (People v. Carpenter (1999) 21 Cal.4th 1016, 1053.) It is enough that the record as a whole affirmatively demonstrates that the court performed its duty under the statute.
A trial court has broad discretion in determining whether the probative value of the proffered evidence is outweighed by concerns of undue prejudice. (People v. Fulcher (2006) 136 Cal.App.4th 41, 58.) On appeal the trial court’s ruling on the admissibility of evidence pursuant to sections 1101 and 352 is reviewed for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Discretion is abused when it is exercised in an arbitrary, capricious or patently absurd manner, resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Unless the court’s decision is arbitrary, capricious, or otherwise without reason, it must be upheld. (Ibid.)
Here, the evidence of defendant’s prior thefts was admitted solely to prove that he knew the motorcycle he was riding when apprehended by Torres had been stolen. The court reasoned it saw no problem with allowing two prior acts, explaining that to restrict the prosecution to just one act could conceivably allow the jury to conclude there was not enough to show that defendant knew the bike was stolen.
Insisting that the trial judge’s reasoning was flawed, defendant urges that the court “prima facie abused its discretion as a matter of law by failing to weigh on the record the probative value of the evidence against the danger of prejudice to appellant.” He contends “[a]s soon as the inflammatory and multiple other bad acts evidence was introduced, it was impossible for [his] guilt or innocence to be judged fairly by the jury.” And, he argues the court’s remark that evidence of two prior acts was “‘certainly not overkill’” cannot be construed as a balancing under section 352.
More specifically, defendant complains the court’s rationale that allowing only one prior bad act would preclude the jury from finding knowledge or intent is wrong: “Take[n] to its logical conclusion that rationale would mean that no jury would ever convict a criminal defendant of vehicle theft on his very first theft prosecution. Hence, no such prosecutions could ever be successful unless the defendant had a history of vehicle thefts.” We disagree with defendant’s interpretation. The purpose of the evidence was not to establish that defendant had stolen the motorcycle he was riding when apprehended by Torres, but rather, that he knew that the motorcycle he purportedly purchased from Ekelson was stolen. Although its performance under the statute may not have been a model to be followed, the court conducted a hearing and limited the evidence to two prior acts rather than three. In so doing, the court by implication considered the prejudicial impact of the evidence on the jury, concluding that it was not unreasonable to allow two incidents rather than just one. It was not necessary for the court to expressly say that it was weighing prejudice against probative value. (People v. Crittenden (1994) 9 Cal.4th 83, 135.)
Moreover, while there is always some potential for prejudice whenever evidence of prior acts is admitted, the jury was clearly instructed that it was to use this evidence for a limited purpose only, as follows: “Evidence has been introduced for the purpose of showing that defendant committed crimes other than that for which he is on trial. [¶] Specifically, those crimes were: [¶] 1) Defendant took a motorcycle unlawfully in 2003; [¶] 2) Defendant took a motorcycle unlawfully in 2004. [¶] Evidence of these prior crimes, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you for the limited purpose of determining if it tends to show: [¶] 1) The existence of intent which is a necessary element of the crime charged; [¶] 2) The existence that defendant had knowledge of the nature of things found in his possession. [¶] Except as otherwise provided by these instructions, you are not permitted to consider such evidence for any other purpose.” (CALJIC 2.50.)
The jury was also instructed: “Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that the defendant committed crimes other than those for which he is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other crimes. [¶] If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged or any included crime in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.” (CALJIC 2.50.1)
We presume the jury followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
Furthermore, as the People point out, defendant’s only defense was that he did not know the motorcycle had been stolen. In that regard, there was ample evidence other than that of his prior bad acts to establish that he had such knowledge. In particular, defendant himself testified with regard to those incidents. He also testified as to how to punch an ignition “under the guise of explaining that the ignition of the motorcycle he was driving had not been punched.” Moreover, no key was found, even though defendant insisted that Ekelson had given him a key and that he had started the ignition with that key. In short, while the jury no doubt believed that defendant had purchased the bike from Ekelson or someone else in that it acquitted defendant of the theft, there was substantial evidence that defendant knew the bike was stolen at the time of purchase. In this regard, we agree with the People’s assessment that the jury’s acquittal indicates it was “not inflamed by the admission of a second incident of misconduct. Rather, this shows that the jury carefully weighed the evidence and followed the instructions.”
Applying the foregoing principles, even if we were to assume that the court failed to weigh the probative value of the evidence against any prejudicial impact, we conclude that any error was harmless. Assuming error, reversal would be required only if, after reviewing the entire record, it could be determined that it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. That is, “[e]rror in the admission or exclusion of evidence following an exercise of discretion under section 352 is tested for prejudice under the Watson harmless error test.” (People v. Mullens (2004) 119 Cal.App.4th 648, 659.)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
As we have already said, the jury heard evidence that defendant knew how to punch an ignition; that although defendant purportedly received an ignition key from Ekelson, no key was found when he was apprehended by Torres; that defendant had made an effort to flee the scene, indicating a consciousness of guilt; and that the motorcycle, when retrieved, was not in the same condition, i.e., its ignition had been punched, as when it was last seen by its owner. Thus, we can say without any reservation that it is not reasonably probable the jury would have reached a result more favorable to defendant had the evidence been excluded. (People v. Malone (1988) 47 Cal.3d 1, 22; Watson, supra, 46 Cal.2d at p. 836.)
Finally, defendant contends he was deprived of his due process right to a fair trial, insisting that “[a]s soon as the inflammatory and multiple other bad acts evidence was introduced, it was impossible for [his] guilt or innocence to be judged fairly by the jury.” He argues “the extensive and detailed tes[t]imony of those events amounted to nothing more than an assassination of appellant’s character before the very jury who was charged with determining appellant’s fate.” We cannot agree. In making this argument, defendant ignores the fact that he himself testified, on impeachment, that he had been convicted of the prior motorcycle thefts—even though he claimed he had not “literally” stolen the motorcycles. As the People assert, “[t]his ‘minimized the chance a jury would punish [defendant] for the prior offense, for which he had already been punished.’ (People v. Kelley (1997) 52 Cal.App.4th 568, 579.)”
The People cite People v. Garrett (1994) 30 Cal.App.4th 962, 967 for the proposition that when a defendant’s prior criminal conduct is the primary basis for establishing a crucial element of the charged offense, it will seldom be deemed inadmissible. Defendant contends Garrett is distinguishable because the prior act evidence in that case pertained specifically to the victim in that case, i.e., the wife, and it was necessary to show that she feared her husband. In contrast, vehicle theft does not require any sort of prior history between the defendant and the victim in order to establish the offense. While there does appear to be a distinction between the two situations, this does not affect our decision that any error was harmless.
Furthermore, defendant’s reliance on Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920 is inapt. That case stands for the proposition that an erroneous admission of evidence constitutes a violation of due process only when “there are no permissible inferences the jury may draw from the evidence.” (Id. at p. 920.) Here, because evidence of the prior acts was relevant to prove defendant’s knowledge and intent, the jury could reasonably infer from that evidence that defendant knew the motorcycle in the current offense was stolen.
B. Any error in permitting Officer O’Boyle to explain his reliance on the contents of a police report and a hearsay statement of the motorcycle’s owner to establish that defendant was riding a stolen motorcycle when he was apprehended in 2003, was harmless.
At trial, defense counsel objected on hearsay grounds when the prosecutor asked Officer O’Boyle how he knew the motorcycle defendant was riding in 2003 had been stolen and the officer referenced a stolen vehicle report which he had reviewed. The court overruled the objection, stating: “It’s a record kept in the ordinary course of business by the State of California perhaps. I don’t know. I assume that’s what he’s going to say.” O’Boyle then testified that “from reading [the report, he] gleaned that there was a motorcycle stolen.” A moment later, the court sustained defense counsel’s renewed hearsay objection, although counsel did not move to strike O’Boyle’s answer. Then, in response to an inquiry as to whether O’Boyle talked to the vehicle’s owner, defense counsel again objected on hearsay grounds. The court overruled that objection, stating it was “[n]ot offered to prove the truth of the matter stated but only that it was stated and can be received by the jury only for that purpose.” O’Boyle then testified that the owner told him that he bought the motorcycle from the registered owner, and based on that information and the police report, he concluded the motorcycle had been stolen.
Defendant renews his objections on appeal. Specifically, he contends the court failed to require the prosecuting attorney to first establish the trustworthiness of the report or the manner in which it was compiled. Citing People v. Hernandez (1997) 55 Cal.App.4th 225, 240-241, he contends “[m]erely because an unknown employee of the police department entered ‘facts’ onto a police report did not magically convert the contents of that report into trustworthy and reliable evidence.” He contends the report was hearsay and that no exception to the hearsay rule applied. Further, acknowledging that his objections were ultimately sustained, he contends the jurors had already been exposed to the evidence and were not admonished to disregard it. Finally, he maintains that because the hearsay nature of the testimony violated his right of confrontation, the appropriate standard of review is the Chapman harmless error test, requiring reversal.
Pursuant to Evidence Code section 1271, “[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Chapman v. California (1967) 386 U.S. 18 (Chapman).
As to the Crawford issue, the People contend, citing People v. Alvarez (1996) 14 Cal.4th 155, 185-186, that defendant waived his right to raise a confrontation clause claim by failing to make a specific objection below. We agree. And while defendant concedes the issue was not raised below, relying on Penal Code section 1259 [absent an objection at trial, a court may consider a question of law affecting a party’s substantial rights] he contends we should consider it nonetheless. Even if we were inclined to do as defendant suggests, and without reaching the merits of his numerous evidentiary claims, we conclude that any error was harmless under any standard.
The record reflects a wealth of circumstantial evidence of defendant’s knowledge and intent to receive stolen property in 2003. By way of example, Officer O’Boyle testified that defendant drove evasively when he noticed the officer following him, and that he attempted to hide behind a shrub after leaving the motorcycle on the porch of a residence. Further, Sergeant Prickett testified that in 2004, defendant drove a stolen dirt bike on the wrong side of the road and then chased defendant on foot, after which he was apprehended. In both cases, defendant demonstrated a consciousness of guilt establishing that the vehicles on which he was traveling had been stolen. Moreover, inasmuch as defendant was impeached with his 2003 and 2004 convictions, the jury was well aware that he had in fact stolen these motorcycles. As for the current offense, Torres testified that defendant seemed “very nervous” and it appeared that he was “looking for a way out, a way to run.” In light of the overwhelming evidence against defendant, including his own testimony, we cannot say that the challenged evidence prejudiced defendant’s case.
Nonetheless, defendant insists that the erroneous admission of the challenged evidence was not harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) He argues his trial was “dominated with detailed testimony that regaled the jury with accounts of [his] several prior bad acts. The witnesses’ testimony regarding those events permeated the trial atmosphere completely and thus, the ultimate question of [his] guilt or innocence was tainted with ‘evidence’ that [he] was a nefarious character who consistently broke the law in a variety of ways, including resisting arrest, an act that under any logic was utterly irrelevant to this case. The erroneously admitted evidence portrayed [him] as a thief and an often-convicted felon with a history of crimes, and therefore, a person with a propensity for crime. [Citation.]” Citing People v. Holt (1984) 37 Cal.3d 436, 454 (Holt), he contends reversal is required because “‘matters got out of hand.’”
In Holt, supra, 37 Cal.3d 436, the defendant was convicted of first degree murder and robbery, both with the use of a deadly weapon, and was sentenced to death. Our high court reversed the conviction, finding that the trial court had committed numerous evidentiary errors and that the defendant was unduly prejudiced by the cumulative effect of those errors. Without going into detail about the nature and scope of those errors, suffice it to state that the present case is markedly different. Simply stated, we find untenable defendant’s contention that, but for the admission of the hearsay evidence to the effect that the motorcycles in the prior acts were stolen the jury could not have concluded he had the propensity to steal or to possess stolen property. Indeed, as we have already indicated, defendant himself provided all the information necessary to enable the jury to reach the conclusion that it did.
C. Defendant’s argument that he was prejudiced by the cumulative effect of the court’s errors also fails.
Under the cumulative error doctrine, “‘[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Citing In re Rodriguez (1981) 119 Cal.App.3d 457, 467, defendant argues the various errors committed at trial “‘divert[ed] the jury’s attention from the serious business of determining guilt or innocence in accordance with proper standards.’” He insists that it cannot be said beyond a reasonable doubt that the cumulative errors did not affect the jury’s assessment of his credibility, and thus his ultimate fate. We cannot agree.
As previously discussed, the record contains overwhelming evidence that defendant knew the motorcycle he was riding when apprehended by Torres was stolen. Moreover, in light of the fact that defendant himself testified regarding his prior convictions and admitted that he pleaded guilty to those acts, he cannot complain that the jury’s attention was diverted when it was he himself who disclosed that he essentially knew everything there was to know about motorcycles, including how to “punch an ignition.” Thus, even were we to conclude that the court erred in permitting Officer O’Boyle to testify about the contents of the police report and his interview with the motorcycle’s owner, or that there was error in admitting evidence of multiple prior bad acts, “we would not say the whole of the trial court’s errors outweighed the sum of their parts [citation], a result more favorable to [defendant] would have been reached in the absence of the errors [citation], or [defendant] suffered a miscarriage of justice [citation.]” (People v. Najera (2006) 138 Cal.App.4th 212, 228.)
D. Cunningham is inapplicable where, as here, the enhanced punishment is based on a prior conviction.
Defendant argues that imposition of the upper term denied him his right to a jury trial on the aggravating factors when it sentenced him to the upper term on his conviction for receiving stolen property. Defendant was sentenced to the aggravated term of three years, doubled. The court specified two factors in aggravation, i.e., unsatisfactory performance on parole, and numerous priors. The United States Supreme Court recently held that the statutory maximum that can be imposed is the middle term because that is the sentence which can be imposed based on a jury’s verdict alone. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. Defendant contends it was for the jury to determine that those factors were true beyond a reasonable doubt and that the matter must therefore be remanded for resentencing.
The People contend that defendant has forfeited his claim by failing to object at the time of sentencing. In response, defendant maintains that a defense objection would have been futile because the trial court was then bound by People v. Black (2005) 35 Cal.4th 1238. Regardless of whether defendant’s claim has been preserved for appeal, we conclude there was no Cunningham error.
“[T]he finding of even one factor in aggravation is sufficient to justify the upper term. [Citation.]” (People v. Steele (2000) 83 Cal.App.4th 212, 226.) The fact that defendant suffered a prior conviction is sufficient to support the imposition of the maximum penalty in a sentencing range. (Jones v. United States (1999) 526 U.S. 227, 248-249.) “‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence’[].” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Thus, the trial court may sentence defendant to the upper term on the conviction for receiving stolen property because he suffered prior convictions.
E. Defendant contends, and the People concede, that the abstract of judgment must be amended to delete reference to the two stricken prior conviction enhancements.
Finally, the parties agree that defendant’s prior convictions, which were stricken pursuant to section 1385, should not have been referenced on the abstract of judgment. Because we have concluded reversal is not required on any other ground, we shall affirm the judgment with directions to the trial court to so modify the abstract of judgment.
DISPOSITION
The trial court is directed to amend the abstract of judgment by deleting all reference to defendant’s prior convictions. The trial court is further directed to prepare an amended abstract of judgment and to forward it to Department of Corrections. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P. J., KING, J.