Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Gloria White-Brown, Judge, Los Angeles County Super. Ct. No. KA068339
John D. O’Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. and Bill Lockyer, Attorneys General, Dane R. Gillette and Robert R. Anderson, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Oscar Daniel Holguin appealed from the judgment following his conviction by a jury of possession of a controlled substance, second degree burglary, forgery and forgery-related offenses with court findings he had served four separate prison terms for a felony. The trial court sentenced him to an aggregate term of seven years eight months in state prison. He complained of sentencing errors. In our opinion filed September 13, 2005, we affirmed in part and reversed in part. Our Supreme Court denied Holguin’s petition for review. However, after issuing its decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), the United States Supreme Court granted Holguin’s petition for writ of certiorari, vacated our opinion, and remanded the matter back to us for reconsideration in light of Cunningham.
Upon reconsideration under Cunningham, as in our prior opinion, we affirm in part and reverse in part.
Our discussion of the other issue Holguin raised is identical to our original opinion in this case, but we include this discussion here as our prior opinion has been vacated. We have not revisited this other issue as Cunningham is inapplicable to it.
FACTUAL AND PROCEDURAL BACKGROUND
On June 4, 2004, at Aliso Check Cashing, Oscar Daniel Holguin (appellant) successfully cashed a check in the amount of $808.63 that the bank later returned as fraudulent. Ten days later appellant attempted to cash a second check at the same business in the amount of $1,100.63. This time the cashier refused to cash the check after recognizing appellant. She then locked the front door of the business and contacted police. Minutes later, appellant’s confederate crashed his car through the front door and appellant entered the car and was driven away.
On September 10, 2004, appellant was stopped while driving his car, gave a false name to the officer and a forged driver’s license in the same name. The officer found methamphetamine in appellant’s pocket. Also found were laptop computers, printers, scanners, blank check stock, and profile information of several potential victims, including the person whose name appellant used when he was pulled over by police.
Appellant was charged by information with one count each of false personation, possession of a forged driver’s license, second degree burglary, forgery and possession of a counterfeit government seal, three counts of forgery and one count of possession of a controlled substance. (Pen. Code, §§ 529, 470b, 459, 472, 470, subds. (b) and (d), Health & Saf. Code, § 11377, subd. (a).) It was further alleged that appellant had served four separate prison terms for a felony. The jury found appellant guilty as charged and following a court trial, the court found true all four prior prison term enhancement allegations.
At sentencing the trial court selected the upper term of three years as the base term for false impersonation, relying on appellant’s numerous prior convictions as a circumstance in aggravation and apparently finding no circumstances in mitigation. The trial court imposed an aggregate sentence of seven years eight months in state prison, consisting of three years for false personation, plus four one-year enhancements for the four prior prison terms. Concurrent middle terms of two years each were imposed for possession of a controlled substance, possession of a forged driver’s license and one of the forgeries. Concurrent middle terms of two years each were imposed and stayed under Penal Code section 654 for one of the forgeries, second degree burglary and possession and forgery of a counterfeit seal. A consecutive term of eight months was imposed for the remaining forgery.
DISCUSSION
Appellant first contends the trial court erroneously imposed two separate enhancements for prior prison terms that were not served separately. We agree.
The trial court imposed one-year enhancements for prior prison terms served in cases KA023940, KA035209, KA057400, and BA220598. However, two of these cases led to the imposition of a single prison term. On April 23, 2002, appellant was sentenced to state prison for two years eight months for forgery and counterfeiting a driver’s license in case BA220598 and released on his own recognizance until July 23, 2002. On June 26, 2002, appellant was sentenced to state prison for three years for burglary and grand theft of personal property in case KA057400, which the sentencing court ordered to be served concurrently with the sentence imposed in case BA220598. Appellant was received by the prison on August 1, 2002.
Under Penal Code section 667.5, subdivision (b), a separate one-year enhancement is to be imposed for “each prior separate prison term served for any felony.” Subdivision (g) of section 667.5 defines a separate prison term as “a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes.” In short, “multiple convictions resulting in a single term of state prison confinement constitute one [prison term] prior.” (People v. Shea (1995) 39 Cal.App.4th 1257, 1274, original emphasis; People v. Medina (1988) 206 Cal.App.3d 986, 990.) In that circumstance, only one prior prison term enhancement may be imposed. (People v. Perez (1992) 4 Cal.App.4th 893, 910-911; Medina, supra, at p. 992.)
As the People properly concede, inasmuch as appellant served but one term of state prison confinement for his convictions in cases KA057400 and BA220598, only one enhancement may be imposed for this term of confinement. The trial court therefore erred in imposing four one-year prior prison term enhancements rather than three. The judgment must be modified to strike one of these enhancements, thereby reducing defendant’s total sentence from seven years eight months to six years eight months.
Appellant further contends that the imposition of the three-year upper term for false personation violated his Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely). We originally rejected Holguin’s argument in light of our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I). However, in Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], the United States Supreme Court disagreed with the decision in Black I and held California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by authorizing the trial judge to make factual findings that subject a defendant to the possibility of an upper term sentence. The United States Supreme Court subsequently granted Holguin’s petition for certiorari, vacated the judgment and remanded the cause to this court for further consideration in light of Cunningham.
We then invited the parties to submit supplemental briefing regarding the application of Cunningham to this case but received no further briefing. Thereafter, the California Supreme Court addressed the Cunningham decision with a second opinion in People v. Black (2007) 41 Cal.4th 799 (Black II).
Prior to our April 3, 2007, order regarding supplemental briefing, we did receive a letter from Holguin indicating that he had an estimated parole release date of May 11, 2007.
In response to our July 20, 2007, order allowing further supplemental briefing after issuance of the decisions in Black II and People v. Sandoval (2007) 41 Cal.4th 825, we received a letter brief from the Attorney General but nothing from Holguin.
In this case, Holguin waived his right to a jury trial on the five prior felony convictions alleged in the information: a 1995 conviction for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)); a 1995 conviction for possession of a controlled substance for sale (Health & Saf. Code, § 11378); a 1997 conviction for attempted grand theft (Pen. Code, §§ 487, subd. (a), and 664); a 2002 conviction for burglary (Pen. Code, § 459) and a 2002 conviction for forgery in counterfeiting a driver’s license (Pen. Code, § 470, subd. (d)). The court found true all the priors. The trial court imposed the upper term of three years on the false impersonation count “based on [Holguin’s] prior convictions, based on the number of convictions and the amount and the passage of time in regards to when those convictions occurred.” (Cal. Rules of Court, rule 4.421(b)(2).)
In his opening brief, Holguin acknowledged that the “[Penal Code,] section 969, subd. (b) package showed that [he] had been convicted of five felonies,” but notwithstanding his waiver of the right to a jury trial on these prior convictions, Holguin argued in his opening brief, “The point of Blakely is that the jury trial must be held.” We disagree.
In Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], the United States Supreme Court reaffirmed Blakely, supra, 542 U.S. 296, as well as Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2438] (Apprendi), and United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738] (Booker), disagreed with Black I, supra, 35 Cal.4th 1238, and held California’s determinate sentencing law (DSL) violates a defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 127 S.Ct. at pp. 863-864.)
Nevertheless, the Cunningham Court reaffirmed its prior holdings that the trial court may increase the penalty for a crime based upon the defendant’s prior convictions without submitting that question to a jury. (Cunningham, supra, 127 S.Ct. at p. 868; see Almendarez-Torres v. United States (1998) 523 U.S. 224; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at pp. 488, 490.) As such, there was no Cunningham error in this case as the trial court relied on the fact of not just one, but a number of prior convictions in Holguin’s recent history.
Then, in Black II, the California Supreme Court concluded that a judge without a jury is permitted to find the defendant suffered prior convictions and also to make other findings “related” to these convictions, such as whether the convictions were “numerous or of increasing seriousness”—as long as those findings are supported by an examination of the record. (Black II, supra, 41 Cal.4th at pp. 819-820.) Moreover, if a single aggravating factor not requiring a jury finding is available to the sentencing judge, then imposition of an upper term sentence is authorized even if the judge used other impermissible factors in deciding to impose that sentence. (Id. at p. 813 [“[so 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 true by a jury”].)
Here, Holguin waived his right to a jury trial on the prior felony convictions alleged in the information, and the trial court found all five convictions true. Any one of these prior convictions, standing alone, established by means that satisfy the governing Sixth Amendment authorities, exposed Holguin to an upper term sentence under the DSL. Further, the trial court’s mention of the number of convictions (five) as well as the amount of time in which those convictions occurred (ten years) is supported by an examination of the record. Such factors relating directly to Holguin’s recidivism independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Consequently, he was not entitled to the middle term and has failed to demonstrate error.
DISPOSITION
The judgment is modified to strike one prior prison term enhancement, thereby reducing appellant’s sentence from seven years eight months to six years eight months. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward the same to the Department of Corrections.
We concur: PERLUSS, P. J., ZELON, J.