Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF059381 John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Wilson Adam Schooley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Emily R. Hanks, and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
A jury found defendant and appellant Fernando Morales guilty of assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The jury also found true that in the commission of the offense defendant had personally inflicted great bodily injury on the victim under circumstances involving domestic violence. (Pen. Code, § 12022.7, subd. (e).) Defendant was sentenced to a total term of nine years in state prison: the upper term of four years for the aggravated assault, plus a consecutive upper term of five years for the great bodily injury enhancement. On appeal, defendant contends: (1) the trial court erred in admitting evidence of a prior domestic violence incident; and (2) his federal constitutional rights to due process and trial by jury were violated when the trial court imposed the upper term on the aggravated assault and the great bodily injury enhancement. We reject these contentions and affirm the judgment.
The jury found defendant not guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).
I
FACTUAL BACKGROUND
Defendant and the victim had an “[o]ff and on” relationship for “two or three years.” They lived together at various times and had a child together. The relationship began as “normal, ” but then escalated to defendant verbally and physically abusing the victim. The victim tried to hide the abuse from her family. Defendant threatened to harm her children or her family if the she left him.
A. The August 2005 Incident
In August 2005, the victim, while at her mother’s residence, tried to end her relationship with defendant, by telling him, over the telephone, that she no longer wanted to be with him. Defendant told the victim he would be over to pick up his clothes. When defendant arrived, he was crying and apologetic, and the victim let him in. Once inside the residence, he tried to hit the victim. Defendant went into the kitchen and reached into the knife drawer. The victim then ran outside. Defendant ran after her, but the victim was able to escape to her aunt’s residence down the street. Her aunt then called the police.
Defendant went back to the victim’s mother’s residence, where the victim’s brother was still inside. He threatened to kill the victim’s brother with a knife. He also put his hand inside a bag to make it appear there was a gun inside the bag. Defendant told the victim’s brother to call the victim so she could return to the residence and he could talk to her. At one point, defendant “socked” the victim’s brother in the eye. When the victim called the residence, defendant told her to return or he would kill her brother and it would be her fault.
Eventually, police surrounded the residence and spoke with defendant. Defendant told the officers that he wanted “his family back” and “wanted everybody to live back together.” He also wanted assurance that the victim would come back. About 25 minutes later, defendant let the victim’s brother go. He told the victim’s brother that he was sorry and to tell his sister that he loved her. Defendant surrendered about five minutes later and was arrested.
B. The July 2007 Incident
The victim eventually ended the relationship in January or February 2007. On July 26, 2007, around 10:00 p.m., she was at her aunt and uncle’s residence. She called her mother; her mother said she would bring her something to eat. A few minutes later, she heard a knock on the door, and she believed it was her mother with the food. She looked out the window but did not see anyone. She opened the door, and defendant pushed his way inside the residence and locked the door behind him. Defendant began calling her names and telling her that he hated her. He then hit the victim with “his elbow and his fist” primarily in the head area and also kicked her. The victim tried to cover her face and pleaded with defendant to stop. Defendant grabbed a screwdriver and put it in the victim’s mouth. He also whipped the victim on her back with a metal spring. Additionally, he hit the victim with a hammer.
Defendant ceased his attack on the victim momentarily and returned with a knife. While he was gone, the victim tried to call her mother. When defendant returned, he heard a beeping noise and asked the victim who she had tried to call. The victim replied “nobody, ” and that she had accidentally pressed the phone. Defendant then got behind the victim, grabbed her by the neck, and tried to cut her throat with the knife. Defendant cut the victim’s chin when she pulled her chin in to protect her throat. He also cut the victim’s knee with the knife. The wound was so deep that the victim could see the bone. Defendant refused to take the victim to the hospital, but eventually dropped the knife and took the victim into the bathroom to make her wash her face. The victim grabbed a towel and then went into the living room where defendant continued to hit the victim with his fist on her face and head. He repeatedly told the victim that he hated her and that everything was her fault. The victim eventually escaped the attack when her mother arrived at the residence. The victim ran outside to her mother’s vehicle.
Defendant then attacked the victim’s mother. He flipped the pizza she was holding out of her hands, grabbed her by the neck, and pushed her up against a fence. The victim’s mother then hollered for her boyfriend, Manuel, to help her; he was waiting in the vehicle outside. Manuel exited the vehicle, and he and defendant began shoving each other. Defendant was reaching behind his back and saying he was going to kill Manuel. Manuel believed defendant was reaching for a weapon. The victim’s mother told Manuel to leave defendant alone and to come with her, which he did. The victim, her mother, and Manuel left the scene and called the police.
While on patrol, Deputy Glasper noticed a group of people standing in the middle of the street. He stopped and spoke to the victim’s mother, who told him what had happened and took the deputy to the location of the incident. Deputy Glasper called for additional officers. The officers entered the residence and noticed it was in disarray, with blood splattered throughout. While the officers were processing the scene, defendant arrived at the residence and asked Deputy Glasper, “why the fuck” was he “in his house.” Deputy Glasper ordered defendant to show his hands, but defendant refused to comply. Once Deputy Glasper ordered defendant to show his hands at gunpoint, defendant complied and was arrested. Defendant had blood splatter on his shoes and socks.
C. Defense
Defendant’s current girlfriend and mother of two of his children testified on behalf of the defense. She claimed that defendant is never mean to her or her children, and that they plan on getting married. She characterized defendant as a “sweetheart.”
Defendant’s mother also testified on behalf of the defense and attested to defendant’s character. She claimed that her son was a nonviolent person and a good person and father.
Defendant testified on his own behalf and denied the August 2005 and July 2007 incidents. In regard to the August 2005 incident, he asserted that he never picked up a knife or held the victim’s brother hostage. He claimed that the victim’s mother was mad that he was at the residence and made the entire incident up. He, however, admitted that he had pled guilty to felony false imprisonment based on the 2005 incident.
In regard to the July 2007 incident, defendant asserted that although he and the victim were no longer dating, they were friends who would smoke methamphetamine together. On the day of the incident, he and the victim were at the residence all day smoking methamphetamine. He left briefly; when he returned, the victim’s children were there as well. He was angry at the victim for smoking methamphetamine in front of the children. Defendant told the victim that he was leaving and she became angry. She yelled at him about his new girlfriend and children. She hit him and punched him as she usually does when they fight. After she punched him in the mouth, he got mad and fought back. He punched her in the forehead. The victim then picked up a rubber hammer and hit him with it. They continued to hit each other. At one point, he grabbed her and slammed her down and threw her into a wall. He also “head butted” the victim and kicked her in the face. Defendant denied using any weapons or cutting the victim with a knife, and insinuated that the victim must have cut herself to get him in trouble. He also denied fighting with the victim’s mother or Manuel.
D. Rebuttal
The victim’s sister-in-law testified that she was babysitting the victim’s children on the night of the July 2007 incident, and the children were not with the victim that night.
Investigator Zamora testified that after defendant was arrested for the August 2005 incident, defendant admitted to having a knife and holding the victim’s brother hostage.
Deputy Glasper testified that during an interview with defendant following his arrest for the July 2007 incident, defendant gave several inconsistent statements. Initially, defendant stated that he was never at the location of the incident. Second, he asserted that he had found the victim beat up and the culprits were probably some unknown drug dealers or the victim’s new boyfriend. Later, he admitted to having a verbal dispute with the victim. Then, he admitted the fight was also physical, but denied using a knife. Finally, he claimed the victim’s injuries were from a fight the previous day.
II
DISCUSSION
A. Admission of Evidence
Prior to trial, the People moved to admit two prior acts of domestic violence by defendant against the victim pursuant to Evidence Code sections 1101 and 1109. The first incident occurred in March 2005, when defendant struck the victim in the face twice, after the victim questioned defendant about her two-year-old son’s injuries. The second incident occurred in August 2005, when defendant attempted to hit the victim, then retrieved a knife, chased her, held her brother hostage, and threatened to kill her brother if she did not return to him. Citing section 352, defendant objected to the admission of both prior acts.
All future statutory references are to the Evidence Code unless otherwise stated.
The trial court found that the August 2005 incident was admissible, but excluded the March 2005 incident. The court explained, “It appears to the Court that the event involving the child [is] very dissimilar to the facts in this case. Not very probative for the issues in this case, and prejudicial felony acts against a child [are] not viewed kindly by the jurors, and it could influence their ability to make a fair decision. [¶] On the other offense, quite similar, could have been identical if somebody didn’t run. It is an act of domestic violence that is defined in the code. And I think it is similar enough for [section] 1101[, subdivision] (b). I rarely let [section] 1101[, subdivision] (b), stuff in. It is relevant as to motive and intent. It is very, very probative, not prejudicial at all.”
Defendant contends the trial court abused its discretion in admitting evidence of the August 2005 incident. Specifically, he claims that the evidence did not meet the definition of domestic violence and that the evidence was more prejudicial than probative.
Evidence of other acts is generally inadmissible to prove a defendant’s propensity to commit the charged acts. (§ 1101, subd. (a).) The Legislature, however, created exceptions to this rule in sexual offense cases (§ 1108) and domestic violence matters (§ 1109). (People v. Reyes (2008) 160 Cal.App.4th 246, 251.)
Section 1108, which allows admission of evidence of uncharged sexual offenses, and section 1109, allowing admission of evidence of uncharged domestic violence, are “virtually identical, ” and cases which have interpreted section 1108 have been relied upon to resolve similar issues involving section 1109. (People v. Johnson (2000) 77 Cal.App.4th 410, 417; see also People v. Johnson (2008) 164 Cal.App.4th 731, 739; People v. Brown (2000) 77 Cal.App.4th 1324, 1333.)
“Under Evidence Code section 1109, evidence of a prior act of domestic violence is admissible to prove the defendant had a propensity to commit domestic violence when the defendant is charged with an offense involving domestic violence.” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114 (Rucker).) However, the trial court has the discretion to exclude any such evidence under Evidence Code section 352 if it is more prejudicial than probative. (Rucker, at p. 1114.) For the purposes of Evidence Code section 1109, “‘[d]omestic violence’ has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to [Evidence Code] section 352... ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.” (Evid. Code, § 1109, subd. (d)(3).) Here, the challenged incident occurred within five years of the charged offense.
Under Penal Code section 13700, subdivision (b), “‘[d]omestic violence’” includes “abuse committed against... [a] person with whom the suspect has had a... dating... relationship.” Penal Code section 13700, subdivision (a), defines “‘[a]buse’” as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” Section 6211 of the Family Code defines “‘[d]omestic violence’” and “abuse” more broadly. Under section 6211 of the Family Code, domestic violence or abuse can be perpetrated against a spouse, a child of a party, other relatives, or “[a] person with whom the respondent is having or has had a dating... relationship.” (Fam. Code, § 6211, subd. (c).) In addition, “abuse” under Family Code section 6203 includes not only acts that “place a person in reasonable apprehension of imminent serious bodily injury” but also encompasses “any behavior that has been or could be enjoined pursuant to [Family Code s]ection 6320.” (Fam. Code, § 6203, subds. (c), (d).) Acts that may be enjoined under Family Code section 6320 include stalking, threatening, harassing, telephoning, and disturbing the peace of the other party. (Fam. Code, § 6320, subd. (a).) Accordingly, we disagree with defendant’s contention that Evidence Code section 1109 does not apply because the August 2005 incident did not involve “domestic violence.”
We also disagree with defendant’s assertion that there was no evidence that he and the victim had a qualifying relationship at the time of the August 2005 incident. The record reveals that at the time of the prior incident, defendant and the victim had been dating, living together, and had a child together. The victim testified that at the time of the August 2005 incident, she and defendant were together but that she had called him to inform him that she no longer wanted to be with defendant. Defendant also acknowledged that the victim was his girlfriend and that he would be over to get his clothes. He had informed the police that he wanted his girlfriend back. He also admitted during his testimony that he went to the victim’s residence that day because he “had been living there.” He further testified that his daughter with the victim was born in January 2005. In our view, the challenged testimony was admissible under sections 1101 and 1109, and the jury was properly instructed on the use of this evidence.
We also reject defendant’s remaining arguments that the admission of the challenged testimony should have been excluded because it was more prejudicial than probative and was so prejudicial it violated his right to due process and a fair trial. “The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913 (Falsetta).)
Section 352 provides a safeguard against the possible undue prejudice arising from the admission of prior acts evidence by requiring the trial court to “engage in a careful weighing process” by considering such factors as the nature of the act, its relevance and reliability, possible remoteness, the likelihood of confusing, misleading, or distracting jurors, its similarity to the charged offense, the burden on the defendant in defending against the uncharged acts, and the availability of less prejudicial alternatives. (Falsetta, supra, 21 Cal.4th at pp. 916-917.) Although domestic violence evidence that is admissible under section 1109 may be excluded under section 352 if it is more prejudicial than probative, we cannot conclude on the record before us that there was any viable basis for doing so. “‘“The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’”’” (Rucker, supra, 126 Cal.App.4th at p. 1119.)
The challenged testimony had substantial probative value on the issue of defendant’s intent and motive. Defendant’s intent was the central issue in the case. The challenged testimony was directly relevant to the defense theory of the case, which was that defendant did not attack the victim with any weapons but did so in self-defense after the victim attacked him and that he no longer had feelings for the victim but that the victim was upset at him for having another girlfriend. Both of the incidents included a common thread because they tended to show that defendant has a propensity to use physical violence toward the victim for leaving him. The incident described in the testimony was not particularly inflammatory in comparison to the charged offense. The evidence against defendant was strong even without the challenged testimony. Finally, the jury was given appropriate limiting instructions on the use of this evidence to prevent any potential prejudice. We presume the jury followed these instructions. (People v. Gray (2005) 37 Cal.4th 168, 217.)
Even if the trial court abused its discretion and erroneously admitted evidence of the prior misdemeanor conviction, any error is not prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 839.) There was overwhelming evidence that defendant assaulted the victim by means likely to produce great bodily injury and that defendant had inflicted great bodily injury under circumstances involving domestic violence. Defendant admitted he “busted her up” on the night of the incident. He also admitted that he had dated, cohabitated, and had a child with the victim. He further admitted that he had injured the victim while fighting with her. The victim, the victim’s mother, and Manuel all testified regarding the extent of the victim’s injuries. Moreover, the jury was shown multiple pictures of the victim’s injuries. The record is also clear that the jury carefully weighed and considered the evidence and did not, as defendant suggests, convict defendant because they were emotionally swayed by the August 2005 incident or the prosecutor’s closing remarks. In fact, it appears that the jury rejected the prosecutor’s argument challenged by defendant. The jury acquitted defendant of the attempted murder and assault with a deadly weapon charges. It is not reasonably probable that a result more favorable to defendant would have resulted if the evidence had been excluded.
B. Upper Term Sentence
Defendant also contends that imposition of the upper term on the assault by means likely to produce great bodily injury charge and the great bodily injury enhancement violated his federal constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
At the sentencing hearing on January 9, 2009, the trial court indicated it had read the probation officer’s report and recommendation. According to the probation report, defendant had four prior juvenile adjudications, and four prior violations of juvenile probation. As an adult, defendant had one felony conviction and one misdemeanor conviction. He was also on probation in two separate cases involving the same victim (based on the March and August 2005 incidents) at the time he committed the instant offense. The probation report listed the following factors in aggravation: (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) defendant was armed with or used a weapon in the commission of the crime (rule 4.421(a)(2)); (3) defendant had engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)); (4) defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness (rule 4.421(b)(2)); (5) defendant was on probation or parole when the crime was committed (rule 4.421(b)(4)); (6) and defendant’s prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)). No factors in mitigation were cited. Relying on most of the factors cited by the probation officer, the trial court sentenced defendant to the upper term of four years for the aggravated assault conviction, and the upper term of five years for the great bodily injury enhancement.
All further references to rules are to the California Rules of Court unless otherwise indicated.
In Apprendi, the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) In Blakely, the high court clarified that, for Apprendi purposes, the prescribed “‘statutory maximum’” is not necessarily the maximum penalty provided by statute for the crime; rather, it is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303, italics omitted.)
In Cunningham, the high court applied Apprendi and Blakely to California’s then existing determinate sentencing law (DSL). (Cunningham, supra, 549 U.S. at pp. 288-292.) The Cunningham court found that the former DSL violated a defendant’s Sixth Amendment right to a jury trial because “circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt.” (Cunningham, supra, 549 U.S. at p. 288.) The court concluded that the middle term prescribed in the former DSL, not the upper term, was the relevant statutory maximum for Apprendi purposes. (Cunningham, supra, 549 U.S. at pp. 288, 293.)
After Cunningham, the Legislature amended the former DSL (Pen. Code, § 1170) by urgency legislation effective March 30, 2007, by way of Senate Bill No. 40. (Stats. 2007, ch. 3, § 2; see also People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2.) The amended DSL eliminated the middle term as the presumptive term and now allows the trial court to exercise broad discretion in selecting the lower, middle, or upper term based on reasons stated on the record. As amended, Penal Code section 1170 provides, “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected.” (Pen. Code, § 1170, subd. (b).)
Defendant here was sentenced under the amended DSL. He recognizes that this court must follow our Supreme Court’s holding in Sandoval, but contends the amended DSL is unconstitutional and that Sandoval was wrongly decided. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We disagree. Defendant was sentenced on January 9, 2009, after the high court issued its decision in Cunningham and after the Legislature amended the DSL. The amended DSL remedied the constitutional infirmities of the former DSL found in Cunningham. In accordance with the requirements of the amended DSL, defendant was not entitled to a jury trial on any of the factors on which the trial court relied in imposing the upper term on the aggravated assault conviction.
In sentencing defendant to the upper term on the substantive charge, the trial court stated its reasons as the crime involved great violence, cruelty, viciousness, callousness, the use of a weapon, and the above-and-beyond injury involved. The court, in connection with the enhancement allegation also noted defendant’s criminal record and his prior performance on probation. The record supports such a finding. Since defendant was sentenced in accordance with the requirements of Penal Code section 1170, subdivision (b), his upper term sentence for the substantive offense did not violate his right to a jury trial or proof beyond a reasonable doubt under Apprendi, Blakely, or Cunningham. (See People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Defendant was not entitled to a jury trial on any of the factors on which the trial court relied in selecting the upper term because, at the time he was sentenced, the middle terms were no longer the presumptive terms under the DSL. Therefore, we find there was no error in the trial court’s selection of the upper term.
Moreover, even if Cunningham had applied to defendant’s sentencing, there would be no error. (People v. Black (2007) 41 Cal.4th 799, 814-816.) The California Supreme Court held in Black 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.” (Id. at p. 816.) In People v. Towne (2008) 44 Cal.4th 63, at pages 76 through 81, our Supreme Court examined various recidivism-related factors that permitted trial courts to impose terms above the statutory maximum. The court held that the Sixth Amendment right to a jury trial does not apply to the factors that the defendant has served a prior prison term, that the defendant was on probation or parole when the crime was committed, or that the defendant had previous unsatisfactory performance on probation or parole. (Towne, at pp. 81-82.)
Even assuming that the trial court erred in relying on nonrecidivist factors, we conclude that imposition of the upper term on the substantive offense was justified due to his juvenile and adult prior convictions, his being on probation at the time of the offense, and his prior unsatisfactory performance on probation. Accordingly, we reject that defendant was improperly sentenced.
Relying on People v. Lincoln (2007) 157 Cal.App.4th 196, 205-206 (Lincoln), defendant argues that even assuming the amended DSL is constitutional as to the upper term for his aggravated assault conviction, “the amendment does not legitimize imposition of the upper term on the [great bodily injury] enhancement.” The urgency legislation did not change former Penal Code section 1170.1, subdivision (d), which still established a presumption that the middle term is the maximum sentence for an enhancement where three possible terms are provided. (Lincoln, at p. 205.) In Lincoln, the Second District held that Penal Code section 1170.1, subdivision (d) “suffers from the identical constitutional infirmities identified by the United States Supreme Court in [Cunningham], and is similarly unconstitutional. The Legislature has taken no step to amend this provision to render it compliant with the Sixth Amendment, and the California Supreme Court did not reform it in [Sandoval].” (Lincoln, at p. 205.) We need not decide whether we agree with the Second District’s assessment of Penal Code section 1170.1 because even assuming Cunningham had applied to defendant’s sentencing, there would be no error. As previously explained, given defendant’s criminal history, including his prior convictions and performance on probation, he was not “‘legally entitled’ to the middle term sentence, and the upper term sentence [was] the ‘statutory maximum.’” (People v. Black, supra, 41 Cal.4th at p. 813.)
At the time of defendant’s sentencing, Penal Code section 1170.1, subdivision (d), provided in part: “If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation.”
We note that Penal Code section 1170.1, subdivision (d), has since been repealed, and now reads, in relevant part: “If an enhancement is punishable by one of three terms, the court shall, in its discretion, impose the term that best serves the interest of justice, and state the reasons for its sentence choice on the record at the time of sentencing.”
In sum, defendant’s criminal history made him eligible for the upper term sentence. Therefore, imposition of the upper term on the great bodily injury enhancement did not violate defendant’s constitutional rights as interpreted in Apprendi and its progeny.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J., MILLER J.