Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA61570, Joan Comparet-Cassani, Judge. Affirmed with modifications and remanded with instructions.
Charles B. Holzhauer, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
On September 26, 2005 we filed an opinion in this case in which we modified the judgment to reflect that as to Count two defendant is convicted of possession of cocaine for purposes of sale within the meaning of Health and Safety Code section 11351 rather than under Health and Safety Code section 11351.5—cocaine base. We remanded the case to the trial court to allow the court to exercise its sentencing discretion under Count two and to impose a $50 laboratory fee pursuant to Health and Safety Code section 11372.5, subdivision (a) and two penalty assessments of $35 pursuant to Government Code section 76000, subdivision (a). In all other respects we affirmed, including the trial court’s imposition of a sentence based on the upper term as to Count 1 and the imposition of a consecutive sentence as to Count two, without a jury trial on findings in connection with those sentence determinations.
After remand from the United States Supreme Court on the sentencing issue in view of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 116 L.Ed.2d 856] (Cunningham), in conformity with the California Supreme Court decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, we adhere to the disposition we rendered in this case before. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
FACTS AND PROCEEDINGS
Defendant and appellant Eddie Lee Hill, after a jury trial, was convicted of the sale or transportation of cocaine, a controlled substance, in violation of Health and Safety Code section 11352, subdivision (a) (Count one) and possession of cocaine base for sale in violation of Health and Safety Code section 11351.5 (Count two). Following a court trial, the trial court found the conviction allegations to be true and sentenced defendant to 10 years based on the higher term as to Count 1, a consecutive term of two years and eight months on Count two—based on a violation of Health and Safety Code section 11351.5—and an additional seven years for the prior conviction-related enhancements.
On appeal we held there was insufficient evidence to establish that the substance involved was “cocaine base,” a necessary element for conviction under Health and Safety Code section 11351.5. We further held that there was sufficient evidence to establish possession of “cocaine” for sale in violation of Health and Safety Code section 11351. That section is a lesser-related offense of the offense charged in Count two; and the evidence, argument, jury instructions and verdict were all consistent with a violation of Health and Safety Code section 11351. Therefore, we reduced the conviction on the second count to a violation of Health and Safety Code section 11351 and remanded the matter to the trial court for sentencing consistent with a violation of that section rather than for a violation of Health and Safety Code section 11352, subdivision (a). We also modified the judgment to include certain fines. Otherwise, we affirmed the judgment.
Defendant had claimed constitutional errors under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Defendant argued that the imposition of the upper term as to Count one in the information was imposed unlawfully because the aggravating factors were neither admitted by defendant nor found by a jury and that the consecutive sentence as to Count two without jury findings of separate interests and objectives of each offense was also illegal. We rejected these contentions under the compulsion of People v. Black (2005) 35 Cal.4th 1238 (Black I). Following Cunningham, supra, 127 S.Ct. 856, overruling Black I, the United States Supreme Court remanded this case to us in light of that decision. We directed the parties to address the effect of Black II, supra, 41 Cal.4th 799and Sandoval, supra, 41 Cal.4th 825 ;if any, on this case.
DISCUSSION
We reaffirm our decision set forth in our opinion in this case filed on September 23, 2005. The trial court, in imposing the upper term for Count one specifically referred to defendants prior convictions. In imposing a consecutive sentence for Count two, the trial court specifically referred to defendant’s prior violations of parole and probation.
In Black II, the Supreme Court stated, “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits 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. ‘Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.’ (Harris v. United States (2002) 536 U.S. 545, 558 [153 L.Ed.2d 524, 122 S.Ct. 2406].) . . . [¶] 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 [55 Cal.Rptr.2d 26, 919 P.2d 640].) 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.)
“The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence. [Citation.]’” (Black II, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th 825, 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. [Citations.]”.) The fact finding on whether a defendant’s prior convictions are numerous or of increasing seriousness is made by the trial court and is not subject to the Sixth Amendment jury trial right. (Black II, supra, 41 Cal.4th at pp. 818-819.) The court also stated, “Cunningham . . . does not undermine our previous conclusion that the 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.) Thus, the court held that a defendant has no right to a jury determination of the factual circumstances necessary to impose consecutive sentences. (Id. at pp. 821-823.)
The trial court’s sentence on Count one was based on defendant’s prior criminal convictions. Defendant’s prior convictions made him eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th 825, 836-837.)
Once defendant was eligible for the upper term, the trial court was entitled to consider all of the factors it relied on in sentencing defendant to the upper term. (Black II, supra, 41 Cal.4th at p. 813.) As noted, under Black II, the trial court could sentence defendant to a consecutive term without any jury factfinding. Defendant contends that Black II was wrongly decided. But, as defendant acknowledges, we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
DISPOSITION
The judgment is modified to reflect that as to count two, defendant is convicted of possession of cocaine for purposes of sale within the meaning of section 11351; and to impose the following additional fines: A $50 laboratory fee fine pursuant to Health and Safety Code section 11372.5, subdivision (a); and two penalty assessments of $35 pursuant to Government Code section 76000, subdivision (a). The case is remanded to allow the court to exercise its sentencing discretion as to count two. In all other respects, the judgment is affirmed. Upon issuance of the remittitur, the superior court clerk is directed to issue an amended abstract of judgment that correctly reflects the fees and penalty assessments imposed that is consistent with this opinion and the disposition as to count two.
We concur: TURNER, P. J., ARMSTRONG, J.