Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF057440, James S. Hawkins, Judge.
Gregory S. Cilli, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of possession of methamphetamine (Health & Saf. Code, § 11378) (count 1), transportation of or furnishing a controlled substance (Health & Saf. Code, § 11379, subd. (a)) (count 2), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364) (count 3). The trial court thereafter found true that defendant had sustained a prior prison term. (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a total term of five years in state prison: the upper term of four years on count 2; a one-year consecutive term for the prison prior; a concurrent six-month county jail term on count 3; and the middle term of two years stayed pursuant to Penal Code section 654 on count 1.
On appeal, defendant contends (1) the trial court’s application of the terms of Senate Bill No. 40 (2007-2008 Reg. Sess.) (Sen. No. 40), which amended the California determinate sentencing law (DSL) found principally in Penal Code section 1170 et seq., violates the ex post facto law, and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) when the trial court imposed the upper term on count 2 based on his prior convictions. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
As defendant does not dispute the validity of his underlying convictions, we will recount the facts briefly. On February 9, 2007, a Riverside County Sheriff’s deputy conducted a traffic stop of a vehicle in which defendant was the front passenger. Following a consent search, defendant was arrested for possession of drug paraphernalia. The driver of the vehicle was also arrested. Upon an entire search of the car, the deputy found four cellular telephones, a black digital scale, a silver scale that appeared to have methamphetamine residue on top of it, torn grocery bags, defendant’s wallet containing $189 in cash, and 4.40 grams of methamphetamine in the center console of the car.
II
DISCUSSION
A. Ex Post Facto
Defendant contends the trial court violated the ex post facto clause of the federal Constitution by sentencing him to the upper term on count 2 under Penal Code section 1170, subdivision (b), as amended by Sen. No. 40, since he committed the offenses before Sen. No. 40 became effective. Although defendant states that he knows we are bound by California Supreme Court precedent under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, he nonetheless raises the application of the holding and rationale of People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) “to preserve [those issues] for federal review.”
Sen. No. 40 became effective March 30, 2007.
As defendant recognizes, our Supreme Court in Sandoval, supra, 41 Cal.4th 825 rejected a similar ex post facto contention as well as a due process claim, concluding “that the federal Constitution does not prohibit the application of the [Sen. No. 40] revised sentencing process . . . to defendants whose crimes were committed prior to the date of [this] decision.” (Id. at p. 857.) In reaching this conclusion, Sandoval noted that a law violates the ex post facto clause only if it applies to events occurring before its enactment in a manner that substantively disadvantages the offender. (Id. at pp. 853-854.) That is not the case with Sen. No. 40. As Sandoval explained, “[T]he removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to—and would not be expected to—have the effect of increasing the sentence for any particular crime. . . . Moreover, . . . the difference in the amount of discretion exercised by the trial court in selecting the upper term under . . . former [Penal Code section 1170], as compared to the [Sen. No. 40] scheme . . . is not substantial.” (Id. at p. 855.) Therefore, applying the procedural terms of Sen. No. 40 to resentences for crimes committed before the passage of Sen. No. 40 violates no principle of ex post facto protection, as it is a judicial procedure deemed necessary to be consistent with constitutional principles. (Sandoval, at p. 855.)
As for due process, Sandoval explained that where the criminal statute at issue specifies the maximum sentence that may be imposed, such notice affords a defendant sufficient warning for due process purposes. (Sandoval, supra, 41 Cal.4th at p. 857.) Here, the statute under which defendant was sentenced to the upper term—Health and Safety Code section 11379, subdivision (a)—specifies a maximum sentence of four years, which is the sentence defendant received.
Sandoval applied the terms of Sen. No. 40 to its case, although the crime occurred before the passage of that amendment. (Sandoval, supra, 41 Cal.4th at p. 845.) Thus, courts faced with a resentencing due to Cunningham error must apply the terms and procedures crafted in Sen. No. 40. Likewise, courts faced with sentencing after Sen. No. 40 became effective must apply the terms and procedures in Sen. No. 40. Here, defendant was sentenced on July 11, 2007, after Sen. No. 40 became effective. We therefore must reject defendant’s request to disregard the holding and rationale of Sandoval irrespective of any argument he might raise. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In any event, as more fully explained below, if there is any legal quibble whether Sandoval disposes of defendant’s ex post facto contention here, the trial court alternatively sentenced defendant to the upper term in a manner—based on defendant’s prior convictions—that has been deemed constitutionally valid all along and, therefore, did not require the new sentencing scheme provided by Sen. No. 40. As the trial court stated, “And if we selected the upper term because, based on his prior convictions, [there] are increasing seriousness now, and he has been to prison before . . . and . . . he was on probation at the time of this incident and apparently did not perform well on probation.” The record shows that defendant, at the time of sentencing, had three prior felony convictions, was on probation when the current crimes were committed, and his prior performance on probation was unsatisfactory. As Cunningham observed, “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 127 S.Ct. at p. 860, italics added.)
B. Imposition of Upper Term Based on Prior Convictions
In Cunningham, the high court overruled in part the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which had held, among other things, that the provisions of California’s DSL authorizing the trial court to find the facts permitting an upper term sentence did not violate a defendant’s right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 860-861.) The United States Supreme Court concluded that because our DSL “authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 871.) The court held that the middle term in California’s DSL was the relevant statutory maximum for the purpose of applying Blakely, supra, 542 U.S. 296, and Apprendi, supra, 530 U.S. 466. (Cunningham, at p. 868.)
However, as noted previously, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224, and affirmed in Apprendi, which allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by a defendant. (Cunningham, supra, 127 S.Ct. at p. 860; see also Apprendi, supra, 530 U.S. at pp. 488, 490.) The court explained California’s “DSL violates Apprendi’s bright-line rule: Except for 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.’ [Citation.]” (Cunningham, at p. 868.)
In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)
Our Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) following the United States Supreme Court’s remand of Black I for reconsideration in light of Cunningham. In Black II, the court recognized that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (See Black II, at p. 815, citing Pen. Code, § 1170, subd. (b), and People v. Osband (1996) 13 Cal.4th 622, 728.) Accordingly, the court in Black II held that a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, supra, at p. 812.) “[A]ny 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.” (Ibid.)
An aggravating circumstance is one that “makes the offense ‘distinctively worse than the ordinary.’ [Citations.]” (Black II, supra, 41 Cal.4th at p. 817.) Accordingly, aggravating circumstances include not only those listed in California Rules of Court, rule 4.421, but also “[a]ny other facts statutorily declared to be circumstances in aggravation,” (Cal. Rules of Court, rule 4.421(c)) and any other facts “reasonably related to the decision being made” (Cal. Rules of Court, rule 4.408(a)).
The court in Black II explained: “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is 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. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at pp. 815-816, italics added.)
Here, the trial court’s determination that defendant’s criminal history supported an upper term sentence falls squarely within the recidivism exception to Apprendi-Blakely-Cunningham. Defendant was not entitled to have this issue presented to a jury or found true beyond a reasonable doubt. (Black II, supra, 41 Cal.4th at p. 818.) Moreover, as defendant candidly acknowledges, we are bound by Black II in light of Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at page 455.
The prior conviction exception to Apprendi-Blakely-Cunningham was recognized in Almendarez-Torres v. United States, supra, 523 U.S. at p. 243, which has yet to be disapproved by the United States Supreme Court.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., HOLLENHORST J.