Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CRF06590 & CRF06438
SCOTLAND, P.J.
Defendant Verne Laperial Harris entered a negotiated plea of no contest to transportation of a controlled substance (case No. CRF06590) and felony spousal abuse (case No. CRF06438), in exchange for dismissal of the remaining charges in those cases as well as pending misdemeanor charges in three other cases and a traffic citation.
On appeal, defendant contends the imposition of the upper term for transportation of a controlled substance violated his constitutional rights as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham).
We disagree and shall affirm the judgment.
DISCUSSION
Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; therefore, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
In Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Ibid., overruling People v. Black (2005) 35 Cal.4th 1238 on this point (hereafter Black I, which was vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36]).)
Interpreting the decision in Cunningham, the California Supreme Court concluded 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 p. 816.) This is so, Black II explains, because “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 863]).” (Black II, supra, 41 Cal.4th at p. 812.) “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, 41 Cal.4th at p. 813.)
Consequently, “[t]he issue to be determined in each case is whether the trial court’s factfinding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Black II, supra, 41 Cal.4th at p. 815; orig. italics.) “As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] 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 facts are found by the 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.)
Here, in imposing the upper term, the trial court found in aggravation that (1) defendant’s prior convictions were numerous, (2) he was on probation at the time of the current offenses, (3) he had engaged in violent conduct that indicated he is a danger to society, and (4) his prior performance on a grant of probation was unsatisfactory.
Contrary to defendant’s argument, the Cunningham interpretation of the Sixth Amendment does not apply to the first two aggravating circumstances. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864]; Black II, supra, 41 Cal.4th at p. 818-820.) Nevertheless, defendant argues that imposition of the upper term must be reversed because the trial court relied upon other aggravating circumstances which should have been, but were not, submitted to a jury. The contention fails.
Because the aggravating circumstances that defendant had numerous prior convictions and was on probation when he committed the crime for which he received the upper term were sufficient, separately and/or collectively, to expose defendant to the upper term without need to obtain a jury verdict as to the existence of those circumstances (Black II, supra, 41 Cal.3d at p. 819), the Sixth Amendment “permit[ted] the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
In any event, we are satisfied beyond a reasonable doubt that the trial court would have imposed the upper term based solely on the aggravating fact that defendant had numerous prior convictions. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Sandoval (2007) 41 Cal.4th 825, 839.)
There is no merit in defendant’s contention that it is reversible error per se for the trial court to consider any aggravating factors which should have been, but were not, submitted to a jury. (Washington v. Recuenco (2006) 548 U.S. ___, ___ [165 L.Ed.2d 466, 474-477]; People v. Sandoval, supra, 41 Cal.4th at p. 838.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS , J., MORRISON , J.