Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR040354S
SIMONS, Acting P.J.
Joshua Nathan Hernandez appeals his conviction by jury trial of multiple criminal offenses. In our original unpublished opinion, filed on June 7, 2007, as modified July 5, 2007, we affirmed defendant’s conviction, but reversed the upper term sentences based on our interpretation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). On September 25, 2007, the California Supreme Court granted respondent’s petition for review and transferred the case to us for consideration in light of People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In light of those cases, we affirm the imposition of appellant’s upper term sentences.
Discussion
In imposing the upper term sentences the trial court found as aggravating factors: (1) the victim’s vulnerability (Cal. Rules of Court, rule 4.421(a)(3)); (2) the imposition of concurrent terms where consecutive terms could have been imposed (rule 4.421(a)(7)); and, (3) appellant was on probation for assault, a crime of violence, at the time he committed the instant offenses (rule 4.421(b)(4)). The court also found appellant’s mental illness to be a mitigating factor. Appellant contends the upper term sentences must be reversed because they were based on facts not admitted by him or found true by the jury.
All rule references are to the California Rules of Court.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court applied the Sixth Amendment and 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. In Cunningham, supra, 127 S.Ct. at p. 871, the high court held that California’s determinate sentencing law violated a defendant’s federal right to trial because it assigned to the trial judge, not the jury, the authority to make factual findings that subject the defendant to the possibility of an upper term sentence.
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the [statutory] maximum authorized by the jury’s verdict. [Citation.] Second, 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. [Citations.]” (Sandoval, supra, 41 Cal.4th at pp. 836-837.) Moreover, “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 a jury trial.” (Black, supra, 41 Cal.4th at p. 813.)
Here, the trial court properly relied on two aggravating circumstances that entitled the court to impose the upper term sentence: the imposition of concurrent terms where consecutive terms could have been imposed (rule 4.421(a)(7)), and appellant was on probation at the time he committed the instant offenses (rule 4.421(b)(4)). The rule 4.421(a)(7) factor, based on the jury’s verdict on counts 7 and 11, first and second degree burglary (Pen. Code, §§ 459, 460, subds. (a) & (b)), for which defendant received a concurrent term, supported imposition of the upper term because it was based on facts found by the jury beyond a reasonable doubt. The rule 4.421(b)(4) factor also supported imposition of the upper term. Black construed the Apprendi prior conviction exception broadly to include “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, 41 Cal.4th at p. 819.) The probation report, considered by the trial court, reveals that appellant was on probation in Alaska at the time he committed the instant offenses.
Because at least one aggravating circumstance was established by means that independently satisfied the requirements of the Sixth Amendment and rendered appellant eligible for the upper term, we conclude the court properly sentenced him to the upper terms.
In all other respects, our decision filed on June 7, 2007, as modified July 5, 2007, remains in effect.
Disposition
The judgment of conviction is affirmed. However, the matter is remanded to the trial court for correction of the sentencing errors identified in section IV of our opinion filed on June 7, 2007, as modified July 5, 2007. After making those corrections, the trial court must forward an amended abstract of judgment to the Department of Corrections.
We concur. GEMELLO, J., MILLER, J.
Judge of the San Francisco County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.