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									Filed 11/5/07 P. v. Peralta CA2/3
Opinion following rehearing
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                           DIVISION THREE


THE PEOPLE,                                                             B163704

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. NA046568)
         v.

TONY PERALTA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Tomson T. Ong, Judge. Affirmed.
         Shawn O’Laughlin, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Susan D. Martynec, Supervising Deputy Attorney General, and Susan Lee
Frierson, Deputy Attorney General, for Plaintiff and Respondent.
                                               ________________
          Defendant and appellant Tony Peralta appeals from the judgment entered
following a jury trial that resulted in his convictions for vehicular manslaughter
with gross negligence, reckless driving causing bodily injury, leaving the scene of
an accident, driving without a license, receiving stolen property, unlawfully
driving or taking a vehicle, and engaging in unlawful firearm activity. Peralta was
sentenced to be incarcerated for 11 years, 4 months.
          Peralta contends: (1) his counsel was prejudicially ineffective for failing to
request severance of the stolen vehicle charges; (2) the trial court erred by
admitting evidence of Peralta’s uncharged misconduct; and (3) the trial court
committed various instructional errors.
          In an unpublished opinion, we affirmed. (People v. Peralta (July 30, 2004,
B163704).) We subsequently granted Peralta’s petition for rehearing, brought on
the ground that the trial court’s imposition of an upper term sentence and
consecutive sentences was called into question by the then-recent decision in
Blakely v. Washington (2004) 542 U.S. 296. We ordered the proceedings stayed
pending our Supreme Court’s decisions in People v. Towne, S125677, and People
v. Black, S126182.
          We now conclude imposition of the upper term and consecutive terms did
not violate Blakely v. Washington, supra, 542 U.S. 296 or Cunningham v.
California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856], and again
affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
          1. Facts.
          a. People’s evidence.
          We set forth the evidence relevant to the issues on appeal in accordance
with the usual rules governing appellate review. (People v. Rodriguez (1999) 20
Cal.4th 1, 11.)




                                             2
       (i) September 30, 2000 vehicular manslaughter and related offenses.
       At approximately 4:00 a.m. on September 30, 2000, Valerie Lozano was
driving five passengers -- Virginia Baca, Nicolas Acosta, Melissa Mitchell, Tricia
Mladineo, and Danielle Gregorio -- home in her Mitsubishi Eclipse, after the
group had visited a club and a party. Lozano was not intoxicated nor was she
having difficulty driving, and nothing appeared to be wrong with the Mitsubishi.
The Mitsubishi’s headlights were on. Lozano dropped Baca off by her home,
which was located near Cabrillo and 1st Streets in the city of San Pedro.
       Cabrillo Street runs north-south and is intersected by 1st Street, which runs
east-west. The speed limit on Cabrillo was 25 miles per hour. Cabrillo slopes
upward towards 1st Street and then downward, cresting in the intersection. A
signal controls traffic at the intersection of Cabrillo and 1st. The light remains red
for traffic traveling north-south on Cabrillo until it is activated by a vehicle or
pedestrian waiting to cross 1st. The light was in proper working order on
September 30, 2000. Approximately one-half block north of the 1st-Cabrillo
intersection, an east-west alley intersects Cabrillo.1
       After dropping Baca off, Lozano headed westward through the alley,
stopped, and began a left turn onto Cabrillo.
       Defendant Peralta was speeding northbound on Cabrillo Street, driving a
Chevrolet Silverado truck he had borrowed from a friend. The Silverado impacted
the driver’s side of Lozano’s Mitsubishi, causing both vehicles to spin. The
Silverado caught fire, and Peralta and his unidentified passenger immediately ran
from the scene. The collision killed Gregorio instantly. Mladineo and Lozano
suffered very serious injuries, necessitating hospital stays of 28 and 10 days,
respectively. Mitchell and Acosta also suffered significant injuries in the crash.


1       The alley was described as being located “two apartments or houses” north
of 1st Street, and was later depicted in defense exhibits as being 135 feet north of
the intersection.


                                           3
None of the surviving victims in Lozano’s vehicle were able to provide further
details about how the accident occurred.2
       Peralta was later located and interviewed by police. He admitted driving
the Silverado and hitting the Mitsubishi. He knew the speed limit on Cabrillo was
25 miles per hour, and admitted traveling “about 40.” Peralta, however, claimed
he had the green light at 1st Street and the collision occurred because the
Mitsubishi exited the alley, coasting, without its lights on, at a speed of less than
five miles per hour. Peralta stated that prior to the collision he had attended a
party. He claimed he was not under the influence of drugs or alcohol, having
drunk only orange juice at the party. A tape recording of the interview was played
for the jury.
       Officer Kurt Smith testified as an accident reconstruction expert for the
People. He concluded that the Silverado was traveling between 57 to 61 miles per
hour just before the impact.
       Linda Apodaca was socializing in the backyard of a house located behind
another house on the corner of 1st and Cabrillo streets when the collision occurred.
Just prior to the collision, she heard the Silverado traveling “really fast”
northbound on Cabrillo. She was able to discern that the vehicle was speeding
because its engine was revving at full acceleration. She briefly saw the Silverado
as it passed. Her impression was, “Wow, he is flying.” The truck did not slow as
it passed her vantage point. Apodaca then heard the truck “hit bottom” as it
traveled through the intersection of 1st and Cabrillo, where the road crests.
Apodaca had witnessed other vehicles which were traveling too fast bottom out in


2       Lozano and Mladineo testified that they recalled nothing after dropping
Baca off until regaining consciousness in the hospital. Mitchell recalled driving
toward Cabrillo, and nothing more until she regained consciousness in the
Mitsubishi after the accident. Acosta recalled the Mitsubishi pulling onto Cabrillo
and beginning the left turn. He saw the Silverado’s approaching headlights for
half a second and then lost consciousness.


                                           4
a similar fashion. Two to three seconds after she heard the Silverado hit bottom,
she heard a second, distinct sound of a large crash. Apodaca had initially told
police she believed the Silverado was traveling at a speed of 85-90 miles per hour.
At the time of trial she had revised her estimate to approximately 65-70 miles per
hour. While she was unsure of the truck’s exact speed, she believed it was going
faster than 40 -- 50 miles per hour. A second witness, George Cramer, had been
approximately one half block away when the collision occurred. He did not see
the collision, but before the crash he had heard a vehicle “jamming, you know,
going fast,” i.e., “a motor going high speed or something.”
       Apodaca did not hear or see any other vehicles traveling on Cabrillo just
before the Silverado passed.
       Erick Sullivan, who owned the Silverado, attended “a little get together”
during the evening hours the night before the collision. Sullivan defined “little get
together” as “like a few people that basically they know each other and they just
get drunk.” Sullivan then went to the docks and continued drinking alcoholic
beverages. Sullivan told police that Peralta attended the party and was among the
group drinking at the docks. At trial, Sullivan denied that Peralta drank any
alcohol at the party or the docks.
       (ii) October 12, 2000 vehicle theft and related offenses.
       During the evening of October 11, 2000, at approximately 11:30 p.m.,
Patricia Garcia visited a bar/restaurant in San Pedro and placed her car keys on the
bar. When she decided to leave approximately one half hour later, the keys and
her vehicle, a purple Ford Thunderbird, were both missing.
       On the afternoon of October 12, 2000, a Long Beach police officer using a
radar gun clocked Peralta driving Garcia’s Thunderbird at 67 miles per hour in a
45 mile per hour zone. When stopped, Peralta stated that he had seen “Tony
Lopez” driving the car for several days, and had paid Lopez $10 to use the car. A
search revealed six .22-caliber shells in Peralta’s right front pants pocket and a



                                          5
baggie with a white powdery substance Peralta identified as methamphetamine in
his left front pants pocket. When asked for his driver’s license, Peralta presented a
California identification card, rather than a driver’s license. The vehicle’s stereo
had been removed from the dashboard, leaving a gaping hole; Garcia’s purse had
been removed from the car; and portions of the vehicle’s interior had been sprayed
with oil, a common method to mask fingerprints. A loaded .22-caliber Baretta
semiautomatic handgun was located beneath the front passenger’s seat. In a
bifurcated proceeding, the trial court found Peralta had been adjudged a ward of
the juvenile court in 1996.
       (iii) Evidence of uncharged misconduct.
       The People additionally presented evidence of three uncharged incidents
evidencing Peralta’s other vehicle thefts, possession of drugs or paraphernalia, or
prior driving infractions.3
       b. Defense evidence.
       Accident reconstruction expert Christopher Kauderer testified that, based
upon his analysis of the evidence, the Silverado was traveling at a minimum speed
of between 41 – 45 miles per hour just prior to the impact. Had Peralta applied the
brakes before the impact, his estimate of Peralta’s speed would have been higher.
       2. Procedure.
       Trial was by jury. Peralta was convicted of vehicular manslaughter with
gross negligence (Pen. Code, § 192, subd. (c)(1)),4 four counts of reckless driving
causing bodily injury (Veh. Code, § 23104, subd. (a)), leaving the scene of an
injury accident (Veh. Code, § 20001, subd. (a)), two counts of driving without a
license (Veh. Code, § 12500, subd. (a)), receiving a stolen vehicle (§ 496d,


3     We discuss the evidence of the uncharged misconduct in more detail infra
where relevant.
4      All further undesignated statutory references are to the Penal Code.


                                          6
subd. (a)), unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)),
and engaging in unlawful firearm activity (§ 12021, subd. (e)). The jury acquitted
Peralta of grand theft of an automobile. The trial court sentenced Peralta to be
incarcerated for a term of 11 years, 4 months. It imposed a restitution fine and a
suspended parole revocation fine.
                                    DISCUSSION
       1. The trial court did not prejudicially err by admitting evidence of
Peralta’s uncharged misconduct.
       a. Additional facts.
       Over Peralta’s objection, the People were permitted to introduce evidence
of Peralta’s uncharged misconduct, i.e., incidents involving other auto thefts, his
possession of drugs or paraphernalia, and/or traffic infractions, as evidence of
habit (Evid. Code, § 1105) or common scheme or plan, knowledge, or absence of
mistake (Evid. Code, § 1101, subd. (b)). The trial court concluded the evidence
was relevant for the stated purposes, and was not more prejudicial than probative
under Evidence Code section 352. The jury was instructed as to the limited
purposes for which the evidence had been admitted. One instruction provided that
“Evidence of the defendant’s habit or custom is admissible to prove conduct on a
specified occasion in conformity with that habit or custom.”5
       Additionally, the trial court refused to exclude evidence that Peralta’s
nickname was “Baby Wacky,”6 where he had been so referred to by other
witnesses or in preliminary hearing testimony. The court excluded any evidence
that “Baby Wacky” was a gang name or that Peralta was affiliated with a gang.




5     Several of the instructions are erroneously set forth in the Clerk’s
Transcript with incorrect CALJIC numbers and titles.
6      The name is spelled both “Baby Whacky” and “Baby Wacky” in the record.


                                          7
       Consistent with the trial court’s ruling, in addition to the evidence elicited
regarding the October 12, 2000 traffic stop (in which Peralta was driving Garcia’s
vehicle), evidence of three uncharged incidents was presented to the jury, as
follows. On February 3, 1998, at approximately 3:10 a.m., a deputy sheriff saw
Peralta sitting in the driver’s seat of a stolen Toyota Corolla, parked in a no
parking zone. Peralta was unable to produce identification. The vehicle’s steering
column was broken and had wires protruding; it had been attached to a device
which allowed the car to be started with a key that did not fit the ignition. Various
car parts, and some of the owner’s belongings, were missing. Peralta told the
deputy the car belonged to his friend “Tony,” but was unable to provide
information about “Tony’s” address or telephone number. Peralta was arrested for
vehicle theft and receiving stolen property.
       On January 29, 2000, at approximately 5:00 a.m., Peralta drove a stolen car
through a red light in San Pedro in an area near the fatal crash. Peralta gave police
a false name and claimed the vehicle belonged to his girlfriend, “Rosie Lopez.”
He was not, however, able to provide further information on Lopez. Peralta did
not have a driver’s license. A substance containing methamphetamine was found
in a baggie in Peralta’s rectum during a booking search.
       On September 13, 2000, approximately two weeks before the fatal
collision, at approximately 4:45 p.m., Peralta was driving in an area near the beach
and parks. He ran a stop sign, and made no attempt to stop, as he turned from
Gaffey Street onto Paseo Del Mar. As Peralta made the turn, the bottom of his car
hit the ground, causing sparks. The speed limit on Paseo Del Mar was 25 miles
per hour, but after completing the turn Peralta drove at 40 to 45 miles per hour.
Joggers and children were present in the area. When an officer effectuated a
traffic stop, she observed a methamphetamine pipe on the driver’s seat. Peralta




                                          8
admitted the pipe was his. The officer warned Peralta to slow down.7 She
informed him he should be careful “because of all the children and the adults
running in the parks and the houses in the area.”
       b. Discussion.
       (i) Applicable legal principles.
       Evidence that a defendant committed uncharged misconduct is inadmissible
to prove he or she has a bad character or a disposition to commit the charged
crime. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369;
People v. Scheer (1998) 68 Cal.App.4th 1009, 1017.) However, such evidence is
admissible under Evidence Code section 1101, subdivision (b), if it is relevant to
prove, among other things, intent, knowledge, absence of mistake or accident, or
the existence of a common design or plan. (Evid. Code, § 1101, subd. (b); People
v. Catlin (2001) 26 Cal.4th 81, 145-146; People v. Ewoldt (1994) 7 Cal.4th 380,
402; People v. Kipp, supra, at p. 369.) “ ‘The admissibility of other crimes
evidence depends on (1) the materiality of the facts sought to be proved, (2) the
tendency of the uncharged crimes to prove those facts, and (3) the existence of any
rule or policy requiring exclusion of the evidence.’ [Citation.]” (People v. Steele
(2002) 27 Cal.4th 1230, 1243.) The least degree of similarity between the crimes
is needed to prove intent. (Id. at p. 1244; People v. Ewoldt, supra, at p. 402.) A
greater degree of similarity is required to prove the existence of a common design
or plan; there must be “ ‘not merely a similarity in the results, but such a
concurrence of common features that the various acts are naturally to be explained
as caused by a general plan of which they are the individual manifestations.’
[Citation.]” (People v. Ewoldt, supra, at p. 402.) However, the plan “need not be


7      In accordance with Los Angeles Police Department (L.A.P.D.) policy, the
officer warned Peralta about speeding and cited him for possession of drug
paraphernalia. It was the L.A.P.D.’s policy at the time not to issue citations for
both violations, but only for the “higher violation.”


                                          9
distinctive or unusual. . . .” (Id. at p. 403.) The greatest degree of similarity is
required when the evidence of the uncharged crime is offered to prove identity.
(Ibid.)
          Even if the evidence of other crimes is relevant to prove matters other than
the defendant’s character or disposition, the evidence is inadmissible unless its
probative value is substantial and is not outweighed by the probability that its
admission would create a serious danger of undue prejudice, of confusing the
issues, or of misleading the jury. (People v. Kipp, supra, 18 Cal.4th at p. 371;
People v. Ewoldt, supra, 7 Cal.4th at p. 404; People v. Scheer, supra, 68
Cal.App.4th at p. 1018.) Because evidence relating to uncharged misconduct may
be highly prejudicial, its admission requires careful analysis. (People v. Ewoldt,
supra, at p. 404.) The admission of evidence of a prior offense, and the evaluation
of prejudice under Evidence Code section 352, is entrusted to the sound discretion
of the trial court and its ruling will not be overturned except upon a finding of
manifest abuse, i.e., a conclusion that the decision was “palpably arbitrary,
capricious and patently absurd.” (People v. Jennings (2000) 81 Cal.App.4th 1301,
1314; People v. Kipp, supra, at p. 369; People v. Poplar (1999) 70 Cal.App.4th
1129, 1138.)
          In contrast to character evidence, evidence of habit or custom is admissible
to prove the defendant’s conduct on a specified occasion in conformity with the
habit or custom. (Evid. Code, § 1105; People v. Hughes (2002) 27 Cal.4th 287,
337.) “Habit” is defined as a person’s regular or consistent response to a repeated
situation.8 (People v. Memro, supra, 38 Cal.3d at p. 681, fn. 22; see generally
1 McCormick, Evidence (5th ed. 1999) Character and Habit, § 195, pp. 686-687;
1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, §§ 67-70,


8      “Custom” refers to “ ‘the routine practice or behavior on the part of a group
or organization that is equivalent to the habit of an individual.’ [Citation.]”
(People v. Memro (1985) 38 Cal.3d 658, 681, fn. 22.)


                                           10
pp. 404-408.) “ ‘Habit’ or ‘custom’ is often established by evidence of repeated
instances of similar conduct.” (People v. Memro, supra, 38 Cal.3d at p. 681, fn.
omitted; see also People v. McPeters (1992) 2 Cal.4th 1148, 1178.) Where habit
evidence is “sought to be introduced on the issue of negligence the cases
uniformly hold that to be admissible the evidence must be limited to conduct
which constitutes a habit, that is, a ‘person’s regular practice of meeting a
particular kind of situation with a specific type of conduct . . . thus indicating that
the doing of the act is semi-automatic’ [citations]; and that it must not be too
remote in time or space from the time and place of the specified occurrence.”
(Webb v. Van Noort (1966) 239 Cal.App.2d 472, 478.) The question of whether
habit evidence is admissible “ ‘is essentially one of threshold relevancy’ ” and is
addressed to the sound discretion of the trial court. (People v. Webb (1993) 6
Cal.4th 494, 529; People v. Hughes, supra, 27 Cal.4th at p. 337; People v.
McPeters, supra, 2 Cal.4th at p. 1178.)
       The erroneous admission of prior crimes evidence is evaluated under the
Watson9 test. (People v. Whitson (1998) 17 Cal.4th 229, 251 [potentially
erroneous admission of evidence of defendant’s prior driving record and
attendance at traffic school subject to Watson standard]; People v. Waidla (2000)
22 Cal.4th 690, 724; People v. Welch (1999) 20 Cal.4th 701, 749-750; People v.
Felix (1993) 14 Cal.App.4th 997, 1007-1008.)
       (ii) Evidence of Peralta’s nickname.
       Apart from the question of whether admission of Peralta’s “Baby Wacky”
name constituted error, it is clear that the evidence was manifestly harmless. The
jury never heard, explicitly or implicitly, any evidence suggesting that “Baby
Wacky” was a gang moniker, that Peralta was a member of a gang, or that the
offenses at issue were in any sense gang-related. It is a matter of common


9      People v. Watson (1956) 46 Cal.2d 818, 836.


                                           11
knowledge that numerous persons who do not belong to criminal street gangs are
known by nicknames. There was nothing about the “Baby Wacky” appellation
that inherently suggested Peralta was a gang member, or had a criminal
disposition. Therefore, there is no reasonable probability that the outcome would
have been more favorable for Peralta had the nickname been excluded.
       (iii) Evidence of prior thefts.
       The trial court did not err by admitting evidence Peralta was found in
possession of stolen vehicles on two occasions prior to his arrest for driving
Garcia’s stolen car. When caught by police driving Garcia’s car, Peralta told an
officer that he had paid “Tony Lopez” $10 to use the vehicle. When caught by
police in stolen cars on the two prior occasions, Peralta gave similar stories, i.e.,
that the car belonged to his girlfriend, “Rosie Lopez,” or was borrowed from
“Tony.” To prove Peralta received stolen property, the People were required to
show Peralta actually knew the property was stolen at the time he bought or
received the property. (§ 496d; CALJIC No. 14.65; cf. In re Anthony J. (2004)
117 Cal.App.4th 718, 728.) To prove violation of Vehicle Code section 10851,
the People had to prove Peralta had the specific intent to deprive the owner
permanently or temporarily of title to or possession of the vehicle. (Veh. Code,
§ 10851; CALJIC No. 14.36.) Evidence Peralta had given essentially the same
fictitious story regarding ownership of stolen cars on two prior occasions tended to
prove his knowledge Garcia’s car was stolen and his intent to permanently deprive
her of possession. It also tended to prove Peralta’s story about renting Garcia’s
car from Lopez was false. The evidence was therefore properly admitted to show
facts other than a criminal disposition under Evidence Code section 1101,
subdivision (b).
       Nor was the evidence of the prior misconduct unduly prejudicial. Evidence
is substantially more prejudicial than probative if it poses an intolerable risk to the
fairness of the proceedings or the reliability of the outcome (People v. Waidla,



                                          12
supra, 22 Cal.4th at p. 724), and uniquely tends to evoke an emotional bias against
the defendant without regard to relevance. (People v. Killebrew (2002) 103
Cal.App.4th 644, 650.) Among the factors a trial court may consider are the
nature of the uncharged misconduct, its relevance to the current proceeding, its
remoteness, the degree of certainty the defendant committed the uncharged crime,
the likelihood of confusing or distracting jurors from the main inquiry before
them, the similarity of the uncharged offense to the charged offense, the burden on
the defendant in defending against the uncharged offense, the existence of less
prejudicial alternatives, and the possible exclusion of inflammatory details
surrounding the uncharged offense. (People v. Falsetta (1999) 21 Cal.4th 903,
917.)
        Here, the prior theft-related incidents were not remote in time. One had
occurred less than one year before the 2000 theft of Garcia’s auto, and the other
had occurred in 1998. Neither of the prior incidents was more inflammatory than
the theft of Garcia’s auto. The jury was not told “one way or the other about any
legal action which may have resulted” from the earlier incidents, decreasing the
likelihood it would convict to punish Peralta for his earlier crimes. (People v.
Callahan (1999) 74 Cal.App.4th 356, 371.) While the jury was required to
determine whether the prior incidents occurred, the facts and issues were
straightforward. There was no likelihood the jury would become confused or
distracted. As we have discussed, the evidence was highly probative.
Accordingly, the trial court did not abuse its discretion by finding the evidence
was not barred by Evidence Code section 352.
        (iv) Prior traffic infractions.
        Likewise, the trial court did not err by admitting evidence of Peralta’s prior
traffic infractions to show his state of mind. To prove gross negligence in the
commission of the vehicular manslaughter offense, the People were required to
show Peralta exercised so slight a degree of care as to raise a presumption of



                                          13
conscious indifference to the consequences. (People v. Ochoa (1993) 6 Cal.4th
1199, 1204; People v. Bennett (1991) 54 Cal.3d 1032, 1036; cf. CALJIC
No. 3.36.) “ ‘The state of mind of a person who acts with conscious indifferences
[sic] to the consequences is simply, “I don’t care what happens.” ’ [Citation.] The
test is objective: whether a reasonable person in the defendant’s position would
have been aware of the risk involved.” (People v. Bennett, supra, at p. 1036.) The
jury was further instructed that gross negligence is not established if the death or
danger to human life was the “result of inattention, mistaken judgment or
misadventure.” (CALJIC No. 3.36.)
       Evidence Peralta ran a red light on January 29, 2000, less than a year before
the collision, and ran a stop sign in a residential area on September 13, 2000,
approximately two weeks before the vehicular manslaughter, was highly relevant
to show Peralta acted with gross negligence on the morning of the fatal collision.
The evidence was relevant under Evidence Code section 1101, subdivision (b) to
prove absence of mistake or accident, i.e., that Peralta ran the red light on Cabrillo
either purposefully or without any regard for the consequences. “[T]he doctrine of
chances teaches that the more often one does something, the more likely that
something was intended . . . .” (People v. Steele, supra, 27 Cal.4th at p. 1244.)
The fact Peralta had been caught running traffic signals on two occasions in the 10
months preceding the fatal incident tended to negate any argument that he merely
had a moment of inattention or mistaken judgment. The evidence of repeated
incidents was probative to show Peralta’s “I don’t care” attitude concerning the
ultimate consequences of his actions. (People v. Ochoa, supra, 6 Cal.4th at
p. 1208.)
       For the same reasons, Peralta’s prior speeding behavior was relevant. The
fact Peralta continued to drive over the speed limit despite a previous stop by
police tended to demonstrate his speeding was willful rather than the result of
inattention or a moment of mistaken judgment. Moreover, the evidence showed



                                          14
the officer who stopped Peralta on September 13, 2000, warned him to slow down
and be careful as there were joggers and children in the area. That Peralta again
drove over the speed limit approximately two weeks later, despite the fact he was
on notice his conduct was illegal and potentially dangerous, was highly probative
to show that his actions the night of the collision were purposeful or, at the least,
indicated indifference to the consequences. (Cf. People v. Andersen (1994) 26
Cal.App.4th 1241, 1253 [“Additionally, from prior brushes with the law,
defendant was aware of the risks attending driving while under the influence.
Given this awareness, as well as defendant’s highly unsafe driving and extreme
inattentiveness while under the influence, the jury reasonably could conclude he
displayed a conscious indifference to the consequences of his actions and thus was
grossly negligent.”]; People v. Bennett, supra, 54 Cal.3d at p. 1038; People v.
Ochoa, supra, 6 Cal.4th at pp. 1204-1206, and cases cited therein [evidence
defendants were warned about dangers of drinking and driving, or high speed
driving, were relevant and admissible to prove awareness of the risk; “if the
evidence showed that defendant actually appreciated the risks involved in a given
enterprise, and nonetheless proceeded with it, a finding of gross negligence (as
opposed to simple negligence) would be appropriate whether or not a reasonable
person in defendant’s position would have recognized the risk”].) A jury should
consider all relevant circumstances to determine if the defendant acted with a
conscious disregard for the consequences, rather than with mere inadvertence.
(People v. Ochoa, supra, at p. 1205; People v. Bennett, supra, at p. 1038.)
       The evidence of prior traffic infractions was not barred by Evidence Code
section 352. The prior incidents were not remote in time. One occurred less than
a year before the collision; the other incident took place approximately two weeks
before the collision. The other incidents were less inflammatory than the charged
crimes. There was therefore no error in admitting the evidence.




                                          15
       (v) The trial court’s errors in admitting drug/paraphernalia evidence, and
allowing the uncharged misconduct evidence to be used as evidence of habit, was
harmless.
       The trial court erred, however, by allowing evidence of prior drug and drug
paraphernalia possession, and by allowing evidence of the other uncharged
misconduct discussed above as evidence of habit.
       Evidence of regular drug or alcohol use may, under some circumstances, be
introduced as habit evidence under Evidence Code section 1105. (See, e.g.,
People v. Humphries (1986) 185 Cal.App.3d 1315, 1338 [evidence that defendant
had used PCP every day for a two-month period ending shortly before the charged
murder would have been sufficient to permit the jury to conclude defendant was a
habitual user and, in conformity with that habit, had ingested PCP on the date of
the murder].) In this case, however, there was insufficient evidence of Peralta’s
drug use to establish such a habit. The People presented evidence Peralta
possessed methamphetamine or a methamphetamine pipe on three occasions over
an approximate 10-month period. This is simply insufficient to establish the
conduct constituted a habit -- i.e., a regular or consistent response to a repeated
situation -- within the meaning of Evidence Code section 1105. (See, e.g., People
v. Hughes, supra, 27 Cal.4th at p. 337 [evidence that on occasions when victim
cleaned her apartment she would leave open the top half of her Dutch door was
“insufficient to establish any habit or custom”]; State v. Whitford (2002) 260
Conn. 610, 642-643 [799 A.2d 1034, 1053] [three prior incidents in which victim
attempted to strangle persons while intoxicated was insufficient to rise to the level
of habit]; cf. People v. Webb, supra, 6 Cal.4th at p. 529 [evidence victim had been
advised to use a system for segregating funds as a money management tool, and
that victim’s mother regularly visited daughter’s apartment during the six months
preceding crimes and saw money stored in jars and envelopes, was sufficient to
prove victim’s habit of storing money in jars and envelopes]; People v. McPeters,



                                          16
supra, 2 Cal.4th at p. 1178; see generally McCormick, supra, § 195, p. 686.) The
same is true as to the evidence of the prior thefts and prior driving infractions.
While the evidence was properly admissible for the purposes stated supra, there
were too few incidents of each to establish the conduct was a habit within the
meaning of Evidence Code section 1105. Two incidents of speeding in a month,
two incidents of running red lights/stop signs within an approximate eight-month
period, and three vehicle thefts over a period of approximately two years, eight
months, do not constitute a habit.
       Moreover, as to the prior drug incidents, there was no evidence Peralta was
actually intoxicated on the prior occasions. Peralta’s prior possession of drugs or
paraphernalia was only relevant, if at all, to show he was under the influence at the
time the collision occurred. But there was no evidence Peralta was under the
influence of methamphetamine on the three prior occasions in which he possessed
the drugs or the pipe. In the absence of such a showing that Peralta drove while
under the influence of methamphetamine on the prior occasions, the evidence
lacked probative value.
       Nonetheless, we conclude the trial court’s misstep was harmless. We
understand Peralta to argue the trial court’s error was prejudicial only on the
question of whether he acted with gross negligence on count 1, the vehicular
manslaughter count, and was guilty of reckless driving (counts 2 through 5). We
therefore limit our discussion accordingly.10
       It was uncontroverted that Peralta was speeding: he admitted he was
traveling approximately 40 miles per hour when he knew the speed limit was 25


10     Indeed, the evidence on the other charges of leaving the scene of an
accident, driving without a license, receiving stolen property, unlawfully driving
or taking a vehicle, and engaging in unlawful firearm activity, was overwhelming
and essentially uncontroverted. The evidence was likewise overwhelming that
Peralta acted with at least ordinary negligence when driving on September 30,
2000.


                                          17
miles per hour. His own expert testified that the minimum speed range just before
impact was between 41 and 45 miles per hour. The People’s expert concluded
Peralta was traveling between 57 to 61 miles per hour just before the impact, a
speed more than twice the speed limit. The testimony of bystander Apodaca
strongly corroborated the People’s expert’s conclusions. Apodaca heard the truck
and briefly saw it pass; her impression was that it was “flying” and her initial
speed estimate was 90 miles per hour. Her revised estimate was 65 to 70 miles per
hour, and she believed the car had been going faster than 40 to 50 miles per hour.
She heard the engine revving at full acceleration. A second witness, Cramer,
described the sound of the truck as “jamming,” and the motor was “going high
speed.” Apodaca also heard the truck bottom out at the intersection, consistent
with a vehicle speeding. Using their common experience, the jury was likely to
conclude that the witnesses would not have described the truck’s engine noise and
speed as they did if it had been going only 40 miles per hour. The accident was
forceful enough to cause both cars to spin, the truck to burst into flames, and to
kill one occupant of the Mitsubishi and seriously injure the others, also suggesting
high speed. Peralta’s statement to police, that he had been traveling at 40 miles
per hour, was not believable. Much of Peralta’s story to police was soundly
impeached by the testimony of other witnesses, i.e., that he had initially remained
at the scene and that the Mitsubishi’s lights were off. Peralta refused to identify
his passenger to police, suggesting the passenger would not have confirmed
Peralta’s account of how the accident transpired. Given Peralta’s lack of candor,
the jury would likely have concluded that he understated his driving speed to
exculpate himself. Further, Peralta told police he “slammed on the brakes” before
the impact. If the jury was inclined to believe this statement, then Peralta
necessarily had been traveling faster than his expert’s estimate of 41 to 45 miles
per hour. In other words, the evidence Peralta was traveling at an excessive speed
was overwhelming.



                                         18
       In addition, the evidence was very strong that Peralta ran a red light at 1st
and Cabrillo. The parties stipulated that the light remains red for north-south
traffic on Cabrillo unless the light is activated by a pedestrian or another car.
There was no evidence of any other cars in the vicinity. Apodaca testified she did
not hear or see other cars on the street before the crash, nor did Peralta slow as he
headed toward the intersection.
       The evidence was therefore overwhelming that Peralta acted with gross
negligence. He was driving in a residential area. He was traveling at high speed,
likely over twice the speed limit. It was dark. The road crested at the intersection
of 1st and Cabrillo. Peralta had been stopped for speeding and running signals
before, but persisted in the behavior, demonstrating his complete indifference to
the consequences of his driving. He was driving without a license. After the
crash, Peralta did not stay to offer aid or call 911, but fled from the scene. Given
the evidence it is not reasonably probable the jury would have found no gross
negligence even had the drug evidence been excluded and the other evidence
properly limited. Accordingly, we conclude the erroneous admission of the
evidence was harmless.
       2. Peralta’s ineffective assistance claim cannot be resolved on direct
appeal.
       Peralta complains that his counsel was prejudicially ineffective for failing
to move to sever the counts related to the fatal accident (counts 1 through 7) from
those related to the auto theft (counts 8 through 10, 12, and 13). He asserts that
the joinder of the cases was prejudicial because, “Evidence of his stealing cars and
his prior drug possession was not relevant to the manslaughter charge. These
stolen car cases together with evidence of drug possession in the past, only served
to inflame this jury in deciding the issue of whether appellant was driving with
gross negligence at the time of the auto accident.”




                                          19
       “An accusatory pleading may charge two or more different offenses
connected together in their commission, or two or more different offenses of the
same class of crimes. (§ 954.) Offenses falling within this description, but
charged in separate pleadings, may be consolidated for trial in order to promote
judicial efficiency [citation], and a trial court’s rulings on joinder are reviewed for
abuse of discretion [citation].” (People v. Koontz (2002) 27 Cal.4th 1041, 1074.)
       “The Sixth Amendment guarantees competent representation by counsel for
criminal defendants. . . . A meritorious claim of constitutionally ineffective
assistance must establish both: ‘(1) that counsel’s representation fell below an
objective standard of reasonableness; and (2) that there is a reasonable probability
that, but for counsel’s unprofessional errors, a determination more favorable to
defendant would have resulted. [Citations.] If the defendant makes an insufficient
showing on either one of these components, the ineffective assistance claim fails.”
(People v. Holt (1997) 15 Cal.4th 619, 703; Strickland v. Washington (1984) 466
U.S. 668, 687-694.) Tactical errors are generally not deemed reversible. “To the
extent the record on appeal fails to disclose why counsel acted or failed to act in
the manner challenged, we will affirm the judgment ‘unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation . . . .’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th
297, 333.) We presume that counsel’s conduct “ ‘falls within the wide range of
reasonable professional assistance’ [citations], and we accord great deference to
counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would
be required to engage in the ‘ “perilous process” ’ of second-guessing counsel’s
trial strategy.” (People v. Frye (1998) 18 Cal.4th 894, 979.)
       Peralta’s ineffective assistance claim fails because the record does not show
the tactical reasons, if any, counsel may have had for failing to move to sever the
charges. Accordingly, the issue is more properly one for a petition for collateral
relief. (People v. Gurule (2002) 28 Cal.4th 557, 657; People v. Mendoza Tello



                                          20
(1997) 15 Cal.4th 264, 266-267 [California Supreme Court has “repeatedly
stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or
failed to act in the manner challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.]”].)
       3. Purported instructional errors.
       a. Failure to sua sponte give a Dewberry instruction.
       As noted, Peralta was charged in count 1 with vehicular manslaughter. The
trial court instructed the jury on both vehicular manslaughter with gross
negligence and vehicular manslaughter with ordinary negligence (CALJIC No.
8.90); on the definitions of gross negligence and ordinary negligence (CALJIC
Nos. 3.36, 8.91); and that to prove “the crime charged in Count 1, there must exist
a union or joint operation of act or conduct and criminal negligence.” (CALJIC
No. 3.35.) The verdict form contained spaces for the jury to indicate whether it
found gross negligence (§ 192, subd. (c)(1)) or ordinary negligence (§ 192, subd.
(c)(2)). As noted, the jury found the vehicular manslaughter was committed with
gross negligence.
       Peralta complains, however, that the instructions on vehicular manslaughter
were defective because they were not accompanied by a further instruction that, if
the jury had a reasonable doubt as to whether the offense was committed with
gross or ordinary negligence, it was required to convict of the lesser offense. (See
People v. Dewberry (1959) 51 Cal.2d 548, 555-558; CALJIC No. 17.10.) While
Peralta is correct that the trial court erred, its error was harmless.
       A trial court is required to instruct, sua sponte, on the general principles of
law that are closely and openly connected to the evidence at trial necessary for the
jury’s understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142,
154; People v. Montoya (1994) 7 Cal.4th 1027, 1047.) When the evidence is
sufficient to support a finding of guilt of both the offense charged and a lesser



                                           21
included offense, the jury must be instructed that if it entertains a reasonable doubt
about which offense was committed, it must find the defendant guilty of only the
lesser offense. (People v. Dewberry, supra, 51 Cal.2d at p. 555; People v.
Musselwhite (1998) 17 Cal.4th 1216, 1262; People v. Crone (1997) 54
Cal.App.4th 71, 75-76.)
       Therefore, the trial court in the instant matter erred by failing to instruct the
jury that if it had a reasonable doubt as to whether Peralta acted with gross
negligence or ordinary negligence, it was required to render a true finding on
ordinary negligence only. The People concede that vehicular manslaughter with
ordinary negligence is a lesser included offense of vehicular manslaughter with
gross negligence (People v. Piceno (1987) 195 Cal.App.3d 1353, 1355), and
implicitly concede that the trial court erred by failing to give the challenged
instruction.
       Accordingly, we consider whether the error was prejudicial under the
Watson standard. (People v. Crone, supra, 54 Cal.App.4th at p. 78; People v.
Dewberry, supra, 51 Cal.2d at p. 558.) As we have discussed above, the evidence
of gross negligence was overwhelming.
       Moreover, we agree with the People that, in light of the jury’s verdicts on
the reckless driving counts, there is no reasonable probability the jury would have
found Peralta guilty of only misdemeanor negligent driving had the omitted
instruction been given. The jury was instructed that an element of the reckless
driving counts was that Peralta drove recklessly. “Reckless driving” was defined
as driving upon a street or highway “in willful or wanton disregard for the safety
of persons or property,” i.e., with “an intentional or conscious disregard for the
safety of persons or property.” (CALJIC No. 16.840.) Gross negligence was
defined as “a negligent act which is aggravated, reckless or flagrant and which is
such a departure from what would be the conduct of an ordinarily prudent, careful
person under the same circumstances as to be contrary to a proper regard for



                                          22
human life or danger to human life or to constitute indifference to the
consequences of those act[s]. The facts must be such that the consequences of the
negligent act could reasonably have been foreseen and it must appear that the
death or danger to human life was not the result of inattention, mistaken judgment
or misadventure but the natural and probable result of an aggravated, reckless or
flagrantly negligent act.” (Italics added.)
       Therefore, in order to render guilty verdicts on the reckless driving counts,
the jury necessarily found beyond a reasonable doubt that Peralta acted with gross
negligence, in that he drove recklessly and with an intentional or conscious
disregard for the safety of persons or property. The trial court’s omission of the
Dewberry instruction was harmless. (People v. Watson, supra, 46 Cal.2d at
p. 836.)
       b. Instruction that violation of the basic speed law is an inherently
dangerous act.
       Peralta next complains that the trial court erred by instructing with the
standard version of CALJIC Nos. 8.95 and 8.96. CALJIC No. 8.95 states that
violation of the basic speed law is an act inherently dangerous to human life and
safety. CALJIC No. 8.96 stated that the prima facie speed limit “which may be
applicable to this case” was 25 miles per hour in a business or residential district
unless otherwise posted. CALJIC No. 8.96 further stated, “If the evidence
establishes beyond a reasonable doubt that the defendant drove a vehicle upon a
highway at a rate of speed in excess of the prima facie speed limit, the defendant
committed an unlawful act amounting to an infraction, unless the evidence raises a
reasonable doubt as to whether his speed was greater than was reasonable or
prudent, having due regard for weather, visibility, the traffic on, and the surface
and width of, the highway, and a speed which endangered the safety of persons or
property.” Peralta contends that these instructions were erroneous because:
(1) violation of the basic speed law is not necessarily an inherently dangerous



                                          23
unlawful act, and therefore violation of a speed limit is not an unlawful act
sufficient to support a finding of manslaughter; and (2) the instructions created an
unconstitutional mandatory presumption, improperly relieving the People of the
burden of proving all elements of the crime. We disagree.
       The vehicular manslaughter statute, section 192, subdivision (c), defines
vehicular manslaughter as, inter alia, “driving a vehicle in the commission of an
unlawful act, not amounting to felony [i.e., a misdemeanor or infraction], and with
gross negligence; or driving a vehicle in the commission of a lawful act which
might produce death, in an unlawful manner, and with gross negligence.” (§ 192,
subd. (c)(1); People v. Wells (1996) 12 Cal.4th 979, 981.) In People v. Wells,
supra, the California Supreme Court concluded that the unlawful act referenced by
the statute need not be an offense inherently dangerous in the abstract; rather, the
act must be dangerous under the circumstances of its commission, and “[a]n
unlawful act committed with gross negligence would necessarily be so.” (People
v. Wells, supra, at pp. 982, 988.) Therefore, the Wells trial court may have erred
by instructing that failure to obey the maximum speed limit (Veh. Code, § 22349)
was an inherently dangerous act in the abstract. Nonetheless, Wells found the
error nonprejudicial. (People v. Wells, supra, at p. 989.) The trial court had
instructed the jury it was required to determine whether defendant’s conduct
constituted gross negligence under the circumstances. (Id. at pp. 989-990.) The
court further instructed that the mere fact a defendant drives a motor vehicle and
violates a traffic law was insufficient in itself to constitute gross negligence, and
the jury was required to determine from the overall circumstances whether the
defendant’s conduct constituted gross negligence. (Id. at p. 990, fn. 8.)
       The trial court in the instant case did not instruct, as in Wells, that violation
of the speed limit was an act inherently dangerous to human life in the abstract.
To the contrary, the trial court here instructed, “The rate of speed at which a
person travels, considered as an isolated fact and simply in terms of so many miles



                                          24
per hour, is not alone proof of a violation of the basic speed law.” Instead, the
instant trial court instructed that violation of the basic speed law was an act
inherently dangerous to human life. The basic speed law was defined in CALJIC
No. 8.95 as quoted above: “No person shall drive a vehicle upon a highway at a
speed greater than is reasonable or prudent having due regard for weather,
visibility, the traffic on, and the surface and width of, the highway, and in no event
at a speed which endangers the safety of persons or property.” Therefore, to
determine whether Peralta violated the basic speed law, the jury would have had to
consider whether, under all the circumstances in which the violation occurred,
Peralta drove in an unreasonable or imprudent manner or in such a manner as to
endanger safety.
       In any event, assuming arguendo that CALJIC No. 8.95 was given in error,
its use was harmless. As in Wells, the jury was instructed that an element of
vehicular manslaughter with gross negligence was that, “The driver of a vehicle
committed with gross negligence an unlawful act which under the circumstances
of its commission was dangerous to human life . . . .” Gross negligence was
defined in CALJIC No. 3.36 in a way that “made it necessary for the jury to find
that defendant’s conduct in driving was foreseeably dangerous to human life.”
(People v. Wells, supra, 12 Cal.4th at pp. 989-990 & fn. 8; CALJIC No. 3.36.)
“[U]nder the instructions given, the jury necessarily found that defendant drove his
vehicle in a manner which constituted a Vehicle Code misdemeanor or infraction;
that he was grossly negligent under the circumstances in which the violation was
committed; and that, as a result of his conduct, a death occurred. Nothing more
was required for conviction under section 192(c)(1).” (People v. Wells, supra, at
p. 990.)
       For the same reasons, the instructions given here did not create an
impermissible mandatory presumption that the unlawful act of speeding was
dangerous as committed, as opposed to being merely dangerous in the abstract.



                                          25
Accordingly, the instructions given to the jury provide no basis for reversal of the
judgment.
       c. Failure to instruct that gross negligence requires conscious indifference
to consequences.
       Finally, Peralta contends the standard language of CALJIC No. 3.36 quoted
supra, defining gross negligence, was flawed because it should have referred to
“conscious indifference” rather than mere “indifference.” We are unpersuaded.
       Preliminarily, we observe that this claim has not been preserved for appeal.
Because “the instruction given did not omit or withdraw an element from the
jury’s determination, defendant was required to request an additional or clarifying
instruction if he believed that the instruction was incomplete or needed
elaboration.” (People v. Maury (2003) 30 Cal.4th 342, 426.) Peralta failed to
request such a clarifying instruction, and his claim is waived on appeal. (People v.
Guiuan (1998) 18 Cal.4th 558, 570 [“ ‘Generally, a party may not complain on
appeal that an instruction correct in law and responsive to the evidence was too
general or incomplete unless the party has requested appropriate clarifying or
amplifying language.’ [Citation.]”].)
       The claim fails on the merits as well. A trial court generally has a sua
sponte duty to give amplifying or clarifying instructions where the terms used
have a technical meaning peculiar to the law, but no such sua sponte duty exists
when the terms used are commonly understood by persons familiar with the
English language. (People v. Ellis (1999) 69 Cal.App.4th 1334, 1338; People v.
Richie (1994) 28 Cal.App.4th 1347, 1360.)
       As we have explained above, gross negligence is the exercise of so slight a
degree of care as to raise a presumption of indifference to the consequences.
“ ‘The state of mind of a person who acts with conscious indifferences [sic] to the
consequences is simply, “I don’t care what happens.” ’ [Citation.]” (People v.
Bennett, supra, 54 Cal.3d at p. 1036.) The dictionary definitions of indifferent



                                         26
include marked by impartiality; not mattering one way or the other; marked by no
special liking for or dislike of something; or marked by a lack of interest,
enthusiasm, or concern. (Merriam Webster’s Collegiate Dictionary, 10th ed.
1996, p. 592.) Indifference does not imply lack of knowledge or consciousness.
To the contrary, one cannot be indifferent to something unless one is conscious of
it. The common meaning of “indifferent to the consequences,” therefore, is that a
person knows there may be consequences, but does not care. Accordingly, the use
of “conscious” to modify “indifference” is largely surplusage and the suggested
modification was unnecessary to adequately convey to the jury the meaning of
indifference. There was no reasonable likelihood that the jury applied the
challenged instruction in a way that violated the Constitution. (People v. Welch,
supra, 20 Cal.4th at p. 766.)
       In support of his argument, Peralta points out that People v. Bennett, supra,
54 Cal.3d at page 1036, as well as other cases, have used the term “conscious
indifference” when defining gross negligence. (Ibid. [“Gross negligence is the
exercise of so slight a degree of care as to raise a presumption of conscious
indifference to the consequences”]; see also People v. Ochoa, supra, 6 Cal.4th at
p. 1204; People v. Contreras (1994) 26 Cal.App.4th 944, 954; People v. Olivas
(1985) 172 Cal.App.3d 984, 988.) However, the issue in Bennett was whether
“allowing the jury to find gross negligence from the ‘overall circumstances of the
defendant’s intoxication,’ without more, [was] consistent with the Legislature’s
definition of gross vehicular manslaughter while intoxicated.” (People v. Bennett,
supra, at p. 1037.) Neither Bennett nor the other cases cited by Peralta held that
the word “conscious” was required to be included in the jury instructions defining
gross negligence. Cases are not authority for propositions not considered. (People
v. Barragan (2004) 32 Cal.4th 236, 243.)
       4. Sentencing issues.




                                         27
       The trial court sentenced Peralta to a term of 11 years, 4 months, as
follows. On count 1, vehicular manslaughter, it imposed the high term of 6 years.
On counts 2, 3, 4, and 5, reckless driving with bodily injury to victims Mladineo,
Lozano, Mitchell, and Acosta, respectively, it imposed consecutive 6-month
sentences. On count 6, leaving the scene of an accident, it imposed a consecutive
term of 1 year. On counts 7 and 12, driving without a license, it imposed
consecutive 6-month terms. On count 9, receiving stolen property, and count 13,
unlawful firearm activity, it imposed consecutive terms of 8 months.
       When imposing sentence, the trial court found three aggravating
circumstances: (1) the victims suffered great bodily injury; (2) the defendant was
on probation at the time he committed the offenses; and (3) his prior offenses were
“serious and increasing in seriousness.”
       In his petition for rehearing, Peralta argues that imposition of an upper term
sentence and consecutive sentences violated his Sixth Amendment right to a jury
trial (Blakely v. Washington, supra, 542 U.S. 296; Apprendi v. New Jersey (2000)
530 U.S. 466; Cunningham v. California, supra, 127 S.Ct. 856.) We discern no
error.11
       a. Imposition of upper term sentence.
       In Apprendi v. New Jersey, supra, 530 U.S. at page 490, the United States
Supreme Court held that other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the


11     As noted ante, we granted Peralta’s petition for rehearing and stayed
proceedings pending our Supreme Court’s decisions in People v. Towne, S125677,
and People v. Black, S126182. Although People v. Towne is still pending before
our Supreme Court, in light of Cunningham and People v. Black (2007) 41 Cal.4th
799 (Black II), resolution of Towne is not necessary to resolution of the issues
presented in Peralta’s petition for rehearing.



                                           28
court held that California’s determinate sentencing law violated a defendant’s
federal constitutional right to a jury trial under the Sixth and Fourteenth
Amendments by assigning to the trial judge, rather than the jury, the authority to
make factual findings that subject a defendant to the possibility of an upper term
sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 871; Black II, supra,
41 Cal.4th at pp. 805, 808-809; People v. Sandoval (2007) 41 Cal.4th 825, 831-
832.)
        Imposition of an upper term sentence “does not infringe upon the
defendant’s constitutional right to jury trial so long as one legally sufficient
aggravating circumstance has been found to exist by the jury, has been admitted
by the defendant, or is justified based upon the defendant’s record of prior
convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Under California law, the
existence of a single aggravating circumstance is legally sufficient to make the
defendant eligible for imposition of the upper term. (Id. at p. 813; People v.
Osband (1996) 13 Cal.4th 622, 728.) Therefore, “as long as a single aggravating
circumstance that renders a defendant eligible for the upper term sentence has
been established in accordance with the requirements of Apprendi and its progeny,
any additional factfinding 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.” (Black II, supra, at p. 812.)
        Here, the trial court relied upon at least one constitutionally permissible
factor, i.e., Peralta’s recidivism. The trial court cited as a circumstance in
aggravation that Peralta’s prior convictions were serious. Imposition of an upper
term sentence is permissible when based upon the aggravating circumstance of the
defendant’s criminal history. (See Black II, supra, 41 Cal.4th at p. 818; People v.
Sandoval, supra, 41 Cal.4th at pp. 836-837 [“the right to jury trial and the
requirement of proof beyond a reasonable doubt do not apply to the aggravating
fact of a prior conviction”].) This recidivism exception applies not only to the fact



                                           29
of the prior conviction, but also to “other related issues that may be determined by
examining the records of the prior convictions,” including the question of whether
the defendant’s convictions are numerous or increasingly serious. (Black II,
supra, at pp. 819-820.) Peralta’s probation report indicates sustained juvenile
petitions for threatening a school officer or employee (§ 71) and two instances of
taking a vehicle without the owner’s consent (Veh. Code, § 10851). His adult
record includes convictions for taking a vehicle without the owner’s consent, and
possession of drug paraphernalia (Health & Saf. Code, § 11364). Peralta’s
convictions were not only serious but were numerous. (See Black II, supra, at
p. 818 [three prior convictions are numerous]; Cal. Rules of Court, rule
4.421(b)(2) [specifying as an aggravating circumstance that defendant’s prior
convictions are numerous or of increasing seriousness].) Because Peralta’s
criminal history established an aggravating circumstance that independently
satisfied Sixth Amendment requirements and rendered him eligible for the upper
term, he was not legally entitled to the middle term and his right to a jury trial was
not violated. (Black II, supra, at p. 820.)
       b. Imposition of consecutive sentences.
       Peralta further asserts that the imposition of consecutive terms violated his
jury trial right. The contention that the imposition of consecutive terms violates
Blakely and Cunningham has recently been rejected by our Supreme Court.
(Black II, supra, 41 Cal.4th at pp. 820-823.) Black II explained that Cunningham
did not undermine the previous conclusion in People v. Black (2005) 35 Cal.4th
1238 (Black I), overruled in part by Cunningham v. California, supra, 127 S.Ct. at
pages 868-871, vacated sub nom. Black v. California (2007) ___ U.S. ___ [167
L.Ed.2d 36, 127 S.Ct. 1210], that imposition of consecutive terms under section
669 does not implicate a defendant’s Sixth Amendment rights. (Black II, supra,
41 Cal.4th at p. 821.) Blakely’s underlying rationale is inapplicable to the decision
to impose consecutive or concurrent sentences. (Id. at p. 821.) Blakely “treats the



                                          30
crime together with a fact that is a prerequisite to eligibility for a greater
punishment as the functional equivalent of a greater crime.” (Ibid.) In deciding
whether to impose consecutive or concurrent terms, a trial court may consider
aggravating and mitigating factors, but is not required to justify the imposition of
consecutive terms by reference to an aggravating circumstance. (Id. at p. 822.)
“The determination whether two or more sentences should be served in this
manner is a ‘sentencing decision[ ] made by the judge after the jury has made the
factual findings necessary to subject the defendant to the statutory maximum
sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury
trial on facts that are the functional equivalent of elements of an offense.’
[Citation.]” (Black II, supra, 41 Cal.4th at p. 823.) Accordingly, imposition of
consecutive sentences did not violate Peralta’s Sixth Amendment rights.




                                    DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                    ALDRICH, J.


We concur:


              KLEIN, P. J.




              KITCHING, J.




                                           31

								
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