Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court for the County of Los Angeles, Ruffo Espinosa, Jr., Judge, Los Angeles County Super. Ct. No. BA292285.
Thomas W. Kielty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Luis M. Plantillas was convicted by a jury of receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted, in a bifurcated proceeding, the truth of the special allegation he had served a prior prison sentence for a felony. (§ 667.5, subd. (b).) On appeal Plantillas contends the trial court erred in admitting incriminating statements he made to a deputy sheriff prior to being advised of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).) He also challenges the jury instructions regarding the adverse inferences that may be drawn from a testifying defendant’s failure to explain or deny evidence against him and argues the trial court’s imposition of an upper term sentence and a prior prison term enhancement violated his Sixth Amendment right to a jury trial and California’s proscription against use of the same fact to impose both an upper term and a sentence enhancement. We affirm.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information charged Plantillas with one count of receiving stolen property (a license plate) (count 1) and one count of giving false information to a patrol officer (§ 148.9, subd. (a)) (count 2). It was also alleged as to count 1 that Plantillas had served a prior prison term for a felony within the meaning of section 667.5, subdivision (b).
Plantillas pleaded guilty to count 2, a misdemeanor, prior to trial.
2. The Pretrial Suppression Hearing
Prior to trial Plantillas moved to suppress statements he had made to sheriff’s deputies in response to questions concerning the stolen license plate, arguing the statements were obtained in violation of Miranda, supra, 384 U.S. 436. (See People v. Sims (1993) 5 Cal.4th 405,440 [“[s]tatements obtained in violation of Miranda are inadmissible to establish guilt”].)
According to the evidence presented at the suppression hearing, shortly after midnight on October 24, 2005, while randomly checking the license plates on vehicles in their vicinity, Los Angeles County Deputy Sheriff Donald Subler and his partner learned that a license plate attached to the rear of a Chevrolet minivan had been reported “lost or stolen.” Subler and his partner, both wearing their sheriff’s uniforms and traveling in a marked patrol car, followed the minivan into a parking lot to investigate. When the minivan stopped, the deputies approached its occupants. Plantillas was sitting in the driver’s seat; a woman sat next to him in the front passenger’s seat.
Deputy Subler testified his partner placed Plantillas in the backseat of the marked patrol car behind the driver’s seat while Subler spoke with the female passenger. Subler explained Plantillas was placed in the patrol car to separate him from his companion while the sheriff’s deputies investigated whether the license plate was actually “lost or stolen.” He added that Plantillas was also placed in the patrol car for his and their protection because the area was known for gang violence and “there was a fair amount of foot traffic” that night. The rear doors of the patrol car were closed and could not be opened from the inside. Plantillas was not handcuffed. Plantillas waited in the patrol car for approximately 10 to 15 minutes while Subler spoke to Plantillas’s passenger.
While Plantillas waited in the patrol car, Subler’s partner discovered the vehicle identification number of the minivan did not match the license plate registration. When Subler was advised of this information, he returned to the patrol car, sat in the front passenger seat with the front passenger door open and asked Plantillas, who had remained in the seat behind the driver’s seat with the rear doors closed, if the minivan belonged to him. Plantillas said it did. Subler then asked why the minivan was not registered to Plantillas. Plantillas volunteered that he had bought the minivan a few weeks earlier from an old friend and could barely afford to make the payment, much less pay the registration. Subler then asked Plantillas why the license place on the minivan did not match the vehicle identification number and inquired how he had obtained the license plate. Plantillas told Subler he had met a “local gangster” at a market in Montebello, paid him $100 for the license plate and put it on the minivan himself. Neither Subler nor his partner informed Plantillas of his right to remain silent and to the presence of counsel at a custodial interrogation prior to asking these questions.
At the suppression hearing the prosecutor asked Deputy Subler a number of questions concerning the nature of his on-scene questioning of Plantillas:
The trial court denied Plantillas’s motion to suppress the statements, finding there had been no custodial interrogation and, therefore, no violation of Miranda, supra, 384 U.S. 436. Although the court found Plantillas had been in custody when Subler asked about the license plate, it concluded Subler’s questions did not amount to an interrogation.
3. The Trial, Verdict and Sentence
At trial Patricia Sanchez testified on October 5, 2005 she noticed the license plate for her minivan (4FUM965), parked in front of her house, was missing. Sanchez believed, based on the debris near her minivan, that someone had deliberately removed the plate. She reported the plate missing to the police. Deputy Subler testified, as he had at the suppression hearing, that, after stopping Plantillas’s minivan because the license plate on it (4FUM965) had been reported lost or stolen, Plantillas told him he had paid a gang member $100 for the license plate. Subler also testified Plantillas had initially given him a false name, identifying himself as his brother, Carlos Plantillas.
Plantillas testified in his own defense, explaining he had purchased the vehicle three weeks before he was arrested. Plantillas said he believed he had a month to register the vehicle and insisted he knew nothing about the license plate or why it was affixed to his minivan. He denied telling Deputy Subler he had solicited a local gang member to obtain a license plate for him. He stated he felt harassed by Subler, who continued to remind him he had a criminal record. When Subler told him if he admitted to “stealing it” the crime would be a misdemeanor, Plantillas decided to tell Subler he “took” the plate. He later requested to speak to Detective Raymond Rocha to explain that his initial statement was untrue and that he had no idea the plate was stolen.
Detective Rocha, testifying in the People’s rebuttal case, explained he had given Plantillas the requisite Miranda admonitions during an interview at the sheriff’s station following Plantillas’s arrest. Plantillas waived his Miranda rights and then repeated to Rocha the details of his conversation with Subler at the scene of the initial detention. Plantillas insisted his statements to Subler had been false and he had only invented that story to appease Subler because Subler was “getting on his nerves.” Plantillas told Rocha he did not know how the license plate came to be on his car. He hypothesized that someone was “playing a joke” on him by attaching the license plate to his vehicle.
The jury convicted Plantillas of one count of receiving stolen property. In a bifurcated proceeding on the special allegation, Plantillas waived his right to a jury trial and admitted he had served one prior prison term within the meaning of section 667.5, subdivision (b). Plantillas was sentenced to an aggregate state prison term of four years, six months, consisting of the upper term of three years on count 1, plus a one-year prior prison term enhancement and a consecutive six month term for giving false information to a police officer, the misdemeanor charged in count 2.
DISCUSSION
1. Although the Trial Court Erred in Denying the Motion To Suppress, Admission of Subler’s Testimony Concerning Plantillas’s Incriminating Statements Was Harmless Error
a. Standard of review
When reviewing a trial court’s decision denying a motion to suppress statements purportedly obtained in violation of the defendant’s rights under Miranda, supra, 384 U.S. 436, we defer to the court’s resolution of disputed facts if supported by substantial evidence. (People v. Stansbury (1995) 9 Cal.4th 824, 831; People v. Siripongs (1988) 45 Cal.3d 548, 575.) Based on those facts, as found, and the undisputed facts, we independently review the trial court’s legal rulings. (People v. Weaver (2001) 26 Cal.4th 876, 918.)
b. Governing law
Miranda admonitions (advising a suspect of his or her right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel) must be given and an individual in custody must knowingly and intelligently waive those rights before being subjected to either express questioning or its “functional equivalent.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 [100 S.Ct. 1682, 64 L.Ed.2d 297]; People v. Ray (1996) 13 Cal.4th 313, 336.) Miranda applies only to “custodial interrogation.” (Innis, at p. 300; Miranda, supra, 384 U.S. at p. 44.) “By ‘custodial interrogation’ we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda, at p. 44.)
“When there is custody but not interrogation, Miranda does not apply.” (People v. Harmon (1992) 7 Cal.App.4th 845, 853.) “‘Interrogation’ consists of express questioning, or words or actions on the part of the police that ‘are reasonably likely to elicit an incriminating response from the suspect.’” (People v. Cunningham (2001) 25 Cal.4th 926, 993.) Whether particular questioning amounts to an interrogation depends on the “total situation,” including the length, place and time of the questioning, the nature of the questions, the conduct of the police and all other relevant circumstances. (People v. Terry (1970) 2 Cal.3d 362, 383, disapproved on another ground in People v. Carpenter (1997) 15 Cal.4th 312, 382.)
Not all conversation between a police officer and a suspect constitutes interrogation. (People v. Ray, supra, 13 Cal.4th at p. 338 [“not all questioning of a person in custody constitutes interrogation under Miranda”].) “The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.” (People v. Clark (1993) 5 Cal.4th 950, 985; see, e.g., People v. Clair (1992) 2 Cal.4th 629, 679-680 [“interrogation” does not extend to “inquiries” limited to identifying a person found under suspicious circumstances or near the scene of a recent crime]; see also People v. Herbst (1986) 186 Cal.App.3d 793, 798-800 [answers to routine booking questions need not be preceded by Miranda warnings to be admissible].)
Preliminary investigative inquiries designed to obtain identifying information to confirm or dispel the suspicion of criminal conduct are outside the scope of Miranda. (People v. Farnam (2002) 28 Cal.4th 107, 180-181 [police officer’s preliminary custodial inquiries, “[W]hat’s your name, what’s your birthday, where do you live?” were attempts to obtain information about the suspect’s identity and to confirm or dispel officer’s suspicions and thus were outside scope of Miranda ]; see also People v. Morris (1991) 53 Cal.3d 152, 198 [asking two brief prearrest questions to learn defendant’s identity and his relationship to the vehicle used in connection with criminal activity did not constitute interrogation], disapproved on another ground in People v. Stansbury, supra, 9 Cal.4th at p. 830, fn. 1.)
The rule excluding preliminary inquiries from the scope of Miranda recognizes “the value of routine and nonintrusive police inquiry before arrests and accusations are made. Such inquiry serves to minimize mistakes and protect the innocent. . . . ‘One of the primary purposes of preliminary questioning is to separate a group of persons possibly involved in a crime into those who should and those who should not be arrested -- to decide whether all, some, or none should be charged. To turn all such questioning into custodial interrogation, requiring Miranda warnings in all cases, may help those eventually charged. But, it could also seriously interfere with the process of information gathering and on occasion force the police to cast their net of arrest too wide, significantly interfering with the liberty of the innocent.’” (People v. Morris, supra,53 Cal.3d at p. 198.)
On the other hand, comments that go beyond preliminary identification inquiries and are reasonably likely to elicit an incriminating response are within the scope of Miranda. (See, e.g., People v. Morris (1987) 192 Cal.App.3d 380, 387 [booking officer who went to defendant’s cell for purpose of giving him identifying wrist band and asked him several questions for purposes of jail security, including “who he was accused of killing” engaged in custodial interrogation because questions were reasonably likely to elicit an incriminating response].) Direct accusations of a crime are also the functional equivalent of interrogation. (See, e.g., People v. Davis (2005) 36 Cal.4th 510, 554 [detective’s comment to defendant, “Think about that little fingerprint” on the gun, implied that defendant’s fingerprint had been found on the gun; “this comment was likely to elicit an incriminating response and thus was the functional equivalent of interrogation”]; People v. Sims, supra,5 Cal.4th at p. 440 [suggestion that defendant had lured victim inside motel room was “functional equivalent” of interrogation].)
c. Deputy Subler’s questioning of Plantillas constituted custodial interrogation
There is no question, and indeed the People do not dispute, that Plantillas, who was placed by sheriff’s deputies in the back of a patrol car and could not open the doors from the inside, was “deprived of his freedom of action” in a significant way or, at the very least, was reasonably led to believe that he was so deprived, and thus was in “custody” for purposes of Miranda. (Thompson v. Keohane (1995) 516, U.S. 99 [116 S.Ct. 457, 133 L.Ed.2d 383]; see also People v. Stansbury, supra, 9 Cal.4th at p. 830 [when no formal arrest takes place, “‘the only relevant inquiry is how a reasonable [person] in the suspect’s shoes would have understood his [or her] situation’”].)
The issue, therefore, is simply whether the questions posed to him while in custody constituted an interrogation. Although Deputy Subler’s initial inquiries to determine Plantillas’s name and his relationship to the minivan on which the stolen license plate was attached may be properly considered preliminary investigative questions, rather than custodial interrogation (see, e.g., People v. Morris, supra, 53 Cal.3d at p. 198 [asking defendant two brief and nonaccusatorial “yes or no” questions “designed to elicit only defendant’s identity and his relationship to the van” not interrogation]; see also People v. Robertson (1982) 33 Cal.3d 21, 38 [asking murder suspect if automobile linked to homicide was his did not violate Miranda]), his examination continued well beyond those preliminary inquiries: Subler pointedly asked Plantillas, who acknowledged he owned the minivan, why the license plate did not match the vehicle identification number and how Plantillas had obtained the license plate. Those questions, viewed in context, were likely to elicit an incriminating response. (People v. Cunningham, supra, 25 Cal.4th at p. 993; see also People v. Sims, supra, 5 Cal.4th at pp. 443-444 [where defendant asked about extradition and officer responded by talking about the crime, officer’s questions served no legitimate purpose and were a technique of persuasion likely to induce defendant to incriminate himself].) Accordingly, the trial court erred in denying Plantillas’s motion to suppress his incriminating statements made in response to Subler’s custodial interrogation before he was arrested and advised of his rights under Miranda.
At oral argument the Attorney General effectively conceded asking Plantillas how he had obtained the license plate would not qualify as a preliminary investigative question but insisted no such inquiry had been made. However, as indicated by the testimony quoted in footnote 3, above, Deputy Subler acknowledged at the suppression hearing that he had asked Plantillas “where he got the plate?”
d. The admission of Plantillas’s on-scene statements to Subler was harmless error
Detective Rocha testified that, after he had advised Plantillas of his Miranda rights at the sheriff’s station, Plantillas waived his right to remain silent and to counsel. Plantillas then volunteered to Rocha during the station house interview that he told Deputy Subler he had purchased the license plate for $100, but that the explanation was false and that he had only invented that story because Subler was “getting on his nerves.”
Neither Plantillas nor the People addressed in their initial briefs the effect of Rocha’s testimony and whether, in light of that testimony, the admission of Plantillas’s statements to Subler under circumstances that violated Miranda was harmless error. At oral argument we requested, and Plantillas and the People submitted, additional letter briefs addressing this issue.
Rocha’s testimony, untainted by Subler’s custodial interrogation of Plantillas in violation of Miranda,was plainly admissible. (See United States v. Patane (2004) 542 U.S. 630, 637-638 [124 S.Ct. 2620, 159 L.Ed.2d 667] [statement obtained in violation of Miranda, if not coerced, does not taint or otherwise require exclusion of subsequent statements obtained in accordance with Miranda ; Oregon v. Elstad (1985) 470 U.S. 298, 310-311 [105 S.Ct. 1285, 84 L.Ed.2d 222] [“a careful and thorough administration of Miranda warnings serves to cure the condition that rendered [an] unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an ‘act of free will’”]; see also People v. Bradford (1997) 14 Cal.4th 1005, 1039 [“if the defendant’s un-Mirandized statement is voluntary, the ‘absence of any coercion or improper tactics undercuts the twin rationales -- trustworthiness and deterrence -- for a broader rule. Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities’”].)
Plantillas did not argue, either at the hearing on the motion to suppress or at trial, that his statements to Subler were involuntary.
Plantillas insists it is improper to consider Rocha’s testimony, elicited in rebuttal following Plantillas’s own testimony, in connection with a harmless error analysis. He argues that Plantillas would never have testified but for the improper admission of Subler’s testimony concerning his incriminating statements and, had he not testified, Rocha’s rebuttal testimony would never have been admitted. To support this argument, Plantillas relies on Alvarado v. Hickman (9th Cir. 2002) 316 F.3d 841 (Alvarado), reversed on other grounds sub nom. Yarborough v. Alvarado (2004) 541 U.S. 652 [124 S.Ct. 2140, 158 L.Ed.2d 938]), a federal habeas proceeding following a second degree murder conviction. In Alvarado the Ninth Circuit rejected the People’s argument the failure to suppress a statement obtained under circumstances that violated Miranda was harmless because the defendant testified in his own defense and his incriminating statements would have been admissible in rebuttal in any event. The Ninth Circuit observed, “[T]here appears to be a strong possibility that Alvarado, if not confronted by his own statement to Comstock, would not have testified in his own defense. This being the case, we believe that the self-incriminating statements” clearly had a “substantial and injurious effect on the jury verdict.” (Alvarado, at p. 857.)
Because it involved a federal habeas proceeding in which the court was not confined to the four corners of the trial record, Alvarado, supra, 316 F.3d 841 is inapposite. (See People v. Waidla (2000) 22 Cal.4th 690, 743-744 [appellate jurisdiction limited to “‘the four corners of the record on appeal’”; issue apparent from evidence outside the record may only be considered in petition for habeas corpus relief]; In re Carpenter (1995) 9 Cal.4th 634, 646 [same].) We simply cannot tell from the appellate record whether Plantillas would have testified in his own defense had Subler’s testimony concerning Plantillas’s custodial statements been suppressed, particularly because Rocha’s testimony would have been admissible in the People’s case in chief. Accordingly, confined to the record before us and considering Rocha’s properly admitted testimony, we must conclude the denial of the motion to suppress Subler’s testimony concerning Plantillas’s statements was harmless beyond a reasonable doubt. (People v. Cunningham, supra, 25 Cal.4th at p. 994 [erroneous admission of defendant’s statements is harmless beyond a reasonable doubt when jury could have considered same evidence from other sources].)
Plantillas’s assertion Rocha’s testimony constituted inadmissible hearsay is also without merit. Plantillas’s statements to Rocha, when offered against Plantillas, are admissible as party admissions. (Evid. Code, § 1220; People v. Carpenter (1999) 21 Cal.4th 1016, 1048-1049.)
2. Instructing the Jury with CALJIC No. 2.62 Did Not Constitute Prejudicial Error
The trial court instructed the jury with CALJIC No. 2.62, the pattern instruction advising the jury regarding the adverse inferences that may be drawn from a testifying defendant’s failure to explain or deny evidence against him or her. CALJIC No. 2.62 provides, “In this case defendant has testified to certain matters. [¶] If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.”
“The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citations.] ‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.’” (People v. Saddler (1979) 24 Cal.3d 671, 681.) Instructions in accordance with CALJIC No. 2.62 are proper, for example, when “a defendant testifies but fails to deny or explain inculpatory evidence or gives a ‘bizarre or implausible’ explanation.” (People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030.) However, contradictions between the defendant’s testimony and his or her prior statements or between the defendant’s testimony and the testimony of prosecutions witnesses do not justify the instruction. (See Saddler, at p. 682 [“a contradiction is not a failure to explain or deny”]; People v. Kondor (1988) 200 Cal.App.3d 52, 57.)
Stressing that he explained the reason he initially identified himself to sheriff’s deputies as his brother -- he feared disclosing his true identity would result in his deportation -- Plantillas argues the trial court erred in instructing the jury with CALJIC No. 2.62 because he did not fail to explain or deny any other evidence against him. The People assert the instruction was justified because Plantillas failed to explain in his testimony the reason he decided ultimately to stop the charade and give the deputies his real name.
Even if we were to agree with Plantillas’s argument, any error in giving the instruction was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Lamer (2003) 110 Cal.App.4th 1463, 1469 [applying harmless error standard articulated in Watson, at p. 836, to error in giving CALJIC No. 2.62].) CALJIC No. 2.62, which does not direct the jury to make an adverse inference, actually contains instructions favorable to the defense, cautioning that “the failure to deny or explain evidence does not create a presumption of guilty, or by itself warrant an inference or guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt.” For this reason, courts have routinely found any error in giving CALJIC No. 2.62 is harmless. (Lamer, at p. 1472 [“we have not found a single case in which an appellate court found the error to be reversible under the Watson standard. On the contrary, courts have routinely found that the improper giving of CALJIC No. 2.62 constitutes harmless error”].) In light of the evidence against Plantillas, it is not reasonably probable a more favorable verdict would have resulted had the instruction not been given. (People v. Saddler, supra, 24 Cal.3d at pp. 683-684; People v. Ballard (1991) 1 Cal.App.4th 752, 757.)
The instruction itself advises the jury it applies only if the jury finds the defendant has failed to explain or deny incriminating evidence introduced by the prosecution that he or she can reasonably be expected to deny or explain. In addition, the trial court instructed the jury with CALJIC No. 17.31, which includes the admonition to “[d]isregard any instruction which applies to facts determined by you not to exist.”
3. Plantillas’s Sentence Did Not Violate His Federal Constitutional Right to a Jury Trial
In sentencing Plantillas to the upper term for receiving stolen property, the trial court relied on two aggravating factors: Plantillas’s prior state prison sentence, a factor Plantillas admitted after waiving his right to a jury trial, and its own finding that Plantillas “ha[d] actually shown no remorse in that he gave a false name to the police apparently in an effort to incriminate his brother.” Plantillas contends the trial court’s imposition of the upper term sentence based in part on a factual determination made by the trial judge, not the jury, violated his federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].)
In Cunningham, supra, 549 U.S. at page ___, the United States Supreme Court disagreed with the decision in People v. Black (2005) 35 Cal.4th 1238 and held California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by authorizing the trial judge to make factual findings that subject a defendant to the possibility of an upper term sentence.
While this case was pending on appeal, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), holding the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities “renders a defendant eligible for the upper term sentence” under the determinate sentencing law, so that “any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.) “The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating factors are found by the trial court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
Under Black II, once Plantillas admitted he had served a prior prison term for a felony, he was eligible for the upper term sentence; and the trial court was authorized to impose that sentence whether or not it relied on ay additional factors. (Black II, supra, 41 Cal.4th at p. 813.) Accordingly, Plantillas’s upper term sentence did not violate Plantillas’s Sixth Amendment right to a jury trial.
Plantillas’s additional contention imposition of consecutive sentences for counts 1 and 2 based on the court’s own factfinding violates his Sixth Amendment jury trial right is similarly without merit. In Black II, supra, 41Cal.4th at pages 821, 823,the Supreme Court reaffirmed its decision in People v. Black (2005) 35 Cal.4th 1238, 1263 (Black I) that a trial court’s decision to impose consecutive terms under section 669 does not implicate the Sixth Amendment. Cunningham, supra, 127 S.Ct. ___ did not question this portion of Black I, and the Black II Court concluded its prior ruling was consistent with the Sixth Amendment. We find no error in the court’s imposition of consecutive sentences on counts 1 and 2.
4. By Failing To Object in the Trial Court, Plantillas Has Forfeited His Claim the Trial Court Erred in Relying on His Prior Prison Term To Impose Both the Upper Term and a Sentence Enhancement
As discussed, the trial court relied on Plantillas’s prior prison term to impose both the upper term for receiving stolen property and the prior prison term enhancement for that count. This dual use of the prior prison term violated California law: “The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b); see People v. Coleman (1989) 48 Cal.3d 112, 165 [dual use of same fact to support both upper term and sentence enhancement prohibited under California law]; see also People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12; People v. Dixon (1993) 20 Cal.App.4th 1029, 1038.) However, by failing to object to this impermissible dual use of the prior prison term, thus depriving the trial court of the opportunity to correct its sentencing error, Plantillas has forfeited the argument on appeal. (People v. Scott, supra, 9 Cal.4th at p. 353 [forfeiture/waiver doctrine applies to “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are . . . cases in which the court purportedly erred because it double-counted a particular sentencing factor”]; People v. de Soto (1997) 54 Cal.App.4th 1, 7-8 [claim of improper dual use of facts waived by failure to impose specific objection at sentencing]; People v. Erdelen (1996) 46 Cal.App.4th 86, 91 [improper dual use of facts to impose upper term waived].)
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, J., ZELON, J.
“Q: Did you ask [Plantillas] specifically about the license plate?
A: Yes I did.
Q: What did you ask him?
A: I asked him why the license plate on the van didn’t match -- didn’t belong on the van, doesn’t match the VIN number.
Q: Did he respond?
A: Yes.
Q: What did he say?
A: I asked him where he got the plate, and he told me that he met a local gangster at a local market in Montebello, and he had paid $100 -- he solicited -- he needed a plate for the van, so he paid this guy $100 for a license plate, and then he got the license plate, and he put it on the van himself . . . .”