Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Jacqueline H. Nguyen, Judge. Los Angeles County Super. Ct. No. GA065384
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, Assistant Attorney General, Lawrence Daniels, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Val Escatiola appeals from the judgment entered upon his conviction by jury of stalking, a felony (Pen. Code, § 646.9, subd. (a)) and two counts of vandalism, one a felony and one a misdemeanor (Pen. Code, § 594, subd. (a)). He was sentenced to the upper term of three years in prison for stalking, with the sentence for felony vandalism stayed pursuant to Penal Code section 654, and was given credit for time served on the misdemeanor count.
Appellant contends that the upper term sentence must be reduced to the midterm because it violates the Sixth and Fourteenth Amendments under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
We affirm.
FACTS
The evidence established that on January 24, 2006, appellant threw a brick at Lupe Castaneda’s living room window. Castaneda lived in a house in Alhambra with her two daughters, two grandsons and a female friend, across the street from appellant. Prior to this incident, she did not know appellant.
Castaneda had been standing less than 10 inches from the window, which shattered. She was frightened and called the police. When officers went to appellant’s house and questioned him, he was agitated, uncooperative and belligerent. He was taken into custody with the assistance of additional officers.
Over the ensuing several months, Castaneda saw appellant pacing in front of his house, looking at her house and at her, which frightened her. One of her daughters, Regina Castaneda (hereafter “Regina”), noticed that appellant was often standing outside his house, sometimes drinking, and that he seemed to be standing outside his house watching her house each time she arrived home.
On April 12, 2006, Regina heard appellant’s vehicle “roar” into her driveway and heard the slamming of brakes. She then saw appellant, who was yelling, try to get into her car, which was parked behind the house. Appellant returned to his own car and yelled, “I am fucking right here. Come and get me.” Regina was frightened and called 911. A few hours later, as Castaneda’s other daughter, Yvonne Calles, watched out the window, appellant drove up the driveway and crashed his Chevrolet Blazer into Castaneda’s garage. Calles did not see any brake lights come on until after the vehicle hit the garage. Regina called 911 again. As she was speaking with the dispatcher, she saw appellant back his vehicle out of the driveway. He looked straight at her through the window as he drove. Castaneda, Regina and Calles feared for their safety and worried about what appellant might do next. The damage caused by appellant to the garage door was estimated at $645.
Approximately a week later, on April 20, 2006, Castaneda saw appellant driving his Blazer into her driveway. A second man got out of the Blazer and tried to force his way into the garage as appellant yelled something to him that Castaneda could not hear. The other man was unable to force open the garage door, and he went to Calles’ car and unsuccessfully tried to get into her vehicle. Castaneda was terrified, and the police were summoned. As appellant tried to back his vehicle out of the driveway, Regina and her husband returned to the house and pulled into the driveway, blocking appellant’s vehicle. When the police arrived, appellant was seated in his Blazer in the driveway. He told an officer that “he was there to squash his problems with his neighbors.”
Castaneda was terrified of appellant and stopped going outside to water the lawn. Regina feared for the lives of her family members and was afraid to go outside. Her sons were afraid to play outside, and her older son walked around with a baseball bat because he was afraid.
Appellant presented no evidence.
SENTENCING
At the sentencing hearing, the trial court stated that it had read and considered the probation report as well as the prosecutor’s sentencing memorandum, appellant’s statement in mitigation, and a statement from the victims.
In his statement, appellant argued that a trial court finding of factors in aggravation would violate Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
The probation report detailed appellant’s adult criminal history, consisting of a lengthy series of misdemeanor convictions commencing in 1988, when he was 19 years of age, with a conviction of being under the influence of a controlled substance. In 1992 he was convicted of battery. In 2001 he sustained a conviction of driving on a suspended license, resulting in three years’ summary probation, and later that year he was convicted of receiving stolen property and was again placed on summary probation for three years.
In 2002 appellant was convicted of failing to provide a statement of sale and was placed on two years’ summary probation. In 2003 he was convicted of resisting arrest and making telephonic or electronic contact with the intent to annoy. He was placed on three years’ summary probation, which was revoked and reinstated in 2005. In 2004 he was granted Proposition 36 probation after an arrest for being under the influence of a controlled substance. Five months later, the Proposition 36 probation was terminated and he was convicted of being under the influence. In 2005 he was convicted of driving under the influence and was placed on three years’ summary probation. Shortly thereafter, probation was revoked and reinstated.
The probation officer indicated that appellant was on an active grant of summary probation at the time of his arrest and that his prior performance on probation was unsatisfactory. The prosecutor’s sentencing memorandum set forth nine factors in aggravation, including that appellant’s prior convictions were numerous or of increasing seriousness, that he was on probation in three cases—the 2003, 2004 and 2005 convictions—when the crime was committed, and that his prior performance on probation was unsatisfactory, in that he had been on probation each time he picked up a new case during the prior five years.
At the sentencing hearing, the trial court denied probation, stating, inter alia, that appellant’s “criminal history shows escalating seriousness” and that “he did not perform well on probation previously.” In selecting the upper term, the trial court determined that “the victims in this matter were particularly vulnerable. [Appellant] was on probation in three other matters at the time of this offense: DUI case, a drug case, as well as on probation for a Penal Code section 148, and annoying phone calls. And the court took into consideration the high degree of callousness with which the offense was committed in this matter.”
DISCUSSION
Appellant contends that, under the dictates of Cunningham, the imposition of the upper term violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to proof beyond a reasonable doubt of aggravating factors used to support that sentence. He argues that rather than remand for resentencing, we must reduce his sentence to the midterm.
Appellant’s contention lacks merit. For the reasons set forth in People v. Black (2007) 41 Cal.4th 799 (Black), we find no constitutional violation in the trial court’s imposition of the upper term.
In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely).) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) The court therefore concluded that the California determinate sentencing law (DSL) was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 871].)
However, “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 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.” (Black, supra, 41 Cal.4th at p. 812.)
As appellant acknowledges, the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, 41 Cal.4th at p. 818; People v. Sandoval (2007) 41 Cal.4th 825, 836-837 (Sandoval).) Moreover, the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black,supra, at p. 819.)
The trial court’s determination that appellant was on probation in three cases at the time of these offenses is the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black, supra, 41 Cal.4th at pp. 819-820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Once the trial court made this determination, appellant was eligible for the upper term, which became the statutory maximum. (Black, supra, at p. 816.) The trial court’s finding of additional facts that supported its discretionary choice of the upper term—the particular vulnerability of the victim and the callousness with which the offense was committed—thus did not violate appellant’s right to trial by jury. (Id. at p. 820.)
The issue of whether a trial court can constitutionally impose an upper term based on the fact that the defendant was on parole when the crime was committed, without a jury determination, is currently before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.
The same facts may be used both to support the denial of probation and to impose the upper term. (Black, supra, 41 Cal.4th at p. 817.) The trial court therefore could also have relied for imposition of the upper term upon its determinations that appellant’s criminal history “show[ed] escalating seriousness” and that appellant “did not perform well on probation previously.” These determinations, like the finding that appellant was on probation at the time of the current offense, did not require findings by a jury. (Id. at pp. 819-820; People v. Yim, supra, 152 Cal.App.4th at p. 371.)
Since the imposition of the upper term did not violate appellant’s constitutional rights, we do not reach his argument that remand for resentencing would be impermissible under California Supreme Court authority and under the Double Jeopardy Clause of the Fifth Amendment.
Appellant challenges the Black decision in several regards. We, of course, are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant further claims that he is denied due process and subjected to an ex post facto law by application in this appeal of what he terms Black’s “altered version of the DSL.” He is mistaken. “[T]he prohibition on ex post facto laws applies only to statutory enactments, not to judicial decisions.” (Sandoval, supra, 41 Cal.4th at p. 855.) Since appellant was on notice that he could receive the upper term under the statute governing his offense, due process is satisfied. (See id. at pp. 856-857.)
In this, which he describes as Black’s “new bifurcated sentencing system,” he refers to Black’s distinction between the two functions served by aggravating circumstances: first, “to raise the maximum permissible sentence from the middle term to the upper term,” and second, “to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense.” (Black, supra, 41 Cal.4th at pp. 815-816.)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.