Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County Nos. VA094660 & BA299857. John A. Torribio, Judge.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING. J.
Jerry Milton Huff appeals from the judgments entered following his conviction by jury on count 1 - possession of cocaine base for sale (Health & Saf. Code, § 11351.5; case No. VA094660) with a court finding that he suffered a prior felony conviction (Pen. Code, § 667, subd. (a)), and following his plea of no contest to evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a); case No. BA299857) with an admission that he suffered a prior felony conviction (Pen. Code, § 667, subd. (a)). The court sentenced him to prison for 10 years. Appellant claims the trial court committed sentencing error in case No. VA094660. We affirm the judgments.
On March 15, 2007, we consolidated appellant’s appeal (B195191) from the judgment in superior court case No. BA299857 with his appeal (B195606) from the judgment in superior court case No. VA094660. On March 20, 2007, we ordered that all future appellate documents be filed under case No. B195191. The facts of superior court case No. BA299857 are not pertinent to this appeal.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence (in case No. VA094660) established that appellant possessed 5.38 grams net weight of a substance containing cocaine in base form in Los Angeles.
CONTENTION
Appellant contends imposition of the upper term on count 1 in case No. VA094660, violated his constitutional rights to a jury trial and to proof beyond a reasonable doubt.
DISCUSSION
The Trial Court Did Not Err by Imposing the Upper Term on Count 1.
1. Pertinent Facts.
Appellant suffered an August 2005 conviction for stalking (Pen. Code, § 646.9, subd. (b)) in case No. VA088980. In case No. BA299857, appellant suffered a September 2006 conviction for evading an officer with willful disregard, with an admission he suffered a prior felony conviction in case No. VA088980 for purposes of the Three Strikes law.
The probation report prepared for an October 26, 2006 hearing reflects that, as a juvenile, appellant suffered six sustained petitions. Five, all suffered in 1987, were for receiving stolen property (two convictions), taking a vehicle without authorization, and misdemeanor evading arrest (two convictions). The sixth, suffered in 1988, was for taking a vehicle without authorization.
As an adult, appellant suffered eight convictions. In particular, he suffered convictions in 1990 for burglary, in 1991 for receiving stolen property, in 1992 for attempting to escape from prison, and in 1994 for possession of a firearm by a felon. He also suffered convictions in 1995 for petty theft, in 2001 for misdemeanor resisting a peace officer, in 2004 for possession of 28.5 grams or less of marijuana, and in 2005 for stalking (case No. VA08890). As to each of the above adult convictions for burglary, receiving stolen property, attempt to escape, and possession of a firearm by a felon, the court sentenced appellant to prison.
On October 26, 2006, at sentencing in case No. VA094660, the following occurred after the court called the case: “The Court: . . . Court and counsel have had a discussion. Mr. Huff has our case and two other matters. [¶] After reviewing the matter . . . the court was inclined to, and I think both the People and the defendant [sic] agree that the court will give him the high term doubled on our case and run everything else concurrent. I think that taking into circumstances [sic] his entire record, he ends up doing about eight years. Looks to me it’s a pretty fair sentence. [¶] Defense, care to be heard? [¶] [Defense Counsel:] No. [¶] The Court: People, care to be heard? [¶] [The Prosecutor:] No, your Honor. [¶] The Court: Then in our case, which is VA094660, he is sentenced to the high term of five years. That is doubled pursuant to 1170.12 for a total term of 10 years. That will run concurrent with BA299857 and VA088980.”
2. Analysis.
Appellant claims imposition of the upper term in case No. VA094660, violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We disagree.
“In Cunningham [v. California, supra, 549 U.S. ___ [127 S.Ct. 856]], the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), concluded that California’s DSL does not comply with a defendant’s right to a jury trial. ‘[U]nder 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, 549 U.S. at pp. ___ - ___ [127 S.Ct. at pp. 863-864].)” (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).)
The Sandoval court later observed, “Apprendi stated, ‘Other than the fact of 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.’ (Apprendi, supra, 530 U.S. at p. 490, . . .)” (Sandoval, supra, 41 Cal.4th at p. 835, first italics added.) “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. . . . [The second exception is:] 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.]” (Id. at pp. 836-837.)
In the instant matter (case No. VA094660), the trial court expressly referred to “our case and two other matters.” There is no dispute the trial court was referring to case No. VA094660 as “our case,” and the two prior conviction cases (case Nos. VA088980 and BA299857) as the “two other matters.” Moreover, the court indicated it would sentence appellant to prison for a doubled upper term in “our case” (case No. VA094660) and “run everything else concurrent,” the latter phrase referring to the court’s intent to impose concurrent sentences on the two prior convictions. The court also indicated it was “taking into circumstances [sic] [appellant’s] entire record,” (italics added) when imposing sentence. That record included appellant’s prior convictions as reflected in the probation report.
To the extent appellant suggests the trial court might have articulated more properly its reliance upon appellant’s criminal record, he waived that issue by failing to raise it below. (Cf. People v. Scott (1994) 9 Cal.4th 331, 354.) Moreover, as to the merits, the trial court is presumed to have read and considered the probation report. (People v. Black (2007) 41 Cal.4th 799, 818, fn. 7 (Black).) A single aggravating factor is sufficient to justify imposition of an upper term. (People v. Dreas (1984) 153 Cal.App.3d 623, 636.) California Rules of Court, rule 4.421(b)(2) lists as an aggravating circumstance that, “The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness[.]” It is indisputable that appellant’s prior convictions were numerous and of increasing seriousness. (Black, supra, 41 Cal.4th at p. 818.) The trial court committed no Cunningham error by imposing the upper term on count 1 in case No. VA094660, since the recidivism exception applied. (Black, at pp. 818-820.)
DISPOSITION
The judgments are affirmed.
We concur: KLEIN, P.J., CROSKEY, J.