Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA070455, Charles D. Sheldon, Judge.
Alan Stern, under appointment by the Court of Appeal, and the California Appellate Project, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel Jr. and Sonya Won, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
SUMMARY
A jury convicted Derrion McClendon of selling cocaine. McClendon waived his right to a jury trial on the special allegations that he had two prison priors which included one prior drug sales conviction. The trial court found true both convictions and sentenced McClendon to the upper term of five years. McClendon’s sole claim on appeal is that the trial court’s imposition of the upper term was error. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
The jury convicted McClendon of the one cocaine sales count with which he was charged. At the court trial on his prior convictions (after McClendon waived his right to a jury trial in this regard), the trial court found the People had proven two prior convictions as alleged: a 1998 conviction for drug sales and a 1999 conviction for receiving stolen property. Defense counsel admitted McClendon had “picked up” the second conviction while on probation for the first offense. At McClendon’s request, the trial court proceeded to sentencing. His counsel asked the court to impose the low term, arguing McClendon had been on his own since the age of 15 and had “some mental issues.” McClendon, who was 28 at the time of the hearing, told the court he had been hospitalized for five to seven months at the age of 13. Citing McClendon’s lengthy record including a prior conviction for the same offense, the prosecutor requested the high term of five years.
The trial court stated: “Here’s what I want to summarize on the record before I pronounce judgment in this case. [¶] You say that he was off on his own at 14 or 15. That’s when he started getting in trouble, which, I guess, happens. But that doesn’t mean that you just have a free ride because you’re off on your own. [¶] And then he started out when he is a juvenile. It was a sustained petition for burglary. And then later that year for robbery. That’s a long time ago because he’s 28 now. So I’m just mentioning them. But the problem is if it’s continuing criminality, then you kind of have to be concerned about the early things as well as the later things.
“And then what happened, according to his record, is he got involved with theft. He is still a very young person. And then in ’95, . . . [h]e is still a juvenile. [The court noted McClendon had additional arrests without filings or convictions.] So he has some things like that that don’t count against him. [¶] And then he went to prison for the first time in 199[8 for cocaine sales]. Of course it was nine years ago, but here we are today, nine years later, he gets convicted of the same thing and then he goes off [to prison] at around the same time a little later for receiving [stolen property].
“And then he got involved in drugs as a user apparently, at least it was a possession charge. And [the court] gave him Prop 36, which is a break to try to get you off the drugs if you’re on them, 2003. Not that long ago.
“And then we have misdemeanors, 2004, unlicensed driver. Just kind of shining the system on. [There are] laws, but he’s not going to abide by them. And then in 2005 we have a misdemeanor battery on an ex-spouse . . . . And then another [battery on an ex-spouse], just forget the law. . . .
“I’m going to stay away from the [Health and Safety Code section] 11370 and find that aggravation clearly outweighs mitigation. I’m not going to double everything. [¶] So it will be five years rather than the possible nine that I could have given him. . . . I know five years is significant, but you’ve got a bad record. You’ve got a bad record. It’s continuing criminality.”
McClendon appeals.
DISCUSSION
According to McClendon, under Cunningham v. California (2007)549 U.S. __ [127 S.Ct. 856]; Blakely v. Washington (2004) 542 U.S. 296; and Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the trial court violated his jury trial rights by imposing the upper term based on facts not found by the jury, and his sentence must be reduced to the “presumptive midterm.” We disagree.
In Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], the United States Supreme Court reaffirmed its prior holdings that a trial court may increase the penalty for a crime based on a 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.) Further, before Cunningham, California courts broadly construed this prior conviction exception to Blakely and Apprendi to apply not only to the fact of the prior convictions, but also to other issues relating to the defendant’s recidivism, including the existence of “numerous” or increasingly serious prior convictions. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [“courts have held that no jury trial right exists on matters involving the more broadly framed issue of ‘recidivism’”]; see also People v. McGee (2006) 38 Cal.4th 682, 706-707 [“numerous state and federal court decisions have interpreted the Almendarez-Torres exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendant’s recidivism”].) McClendon argues nonetheless that the Almendarez-Torres exception must be narrowly construed and does not apply in this case.
Our Supreme Court’s recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II) is to the contrary. 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, McClendon waived his right to a jury trial on the prior convictions alleged in the information, and the trial court found these convictions true. These prior convictions established by means that satisfy the governing Sixth Amendment authorities exposed McClendon to an upper term sentence. Further, the trial court’s recitation of McClendon’s extensive criminal history is supported by an examination of the record. Such factors relating directly to McClendon’s recidivism independently satisfy Sixth Amendment requirements and render him eligible for the upper term. (Black II, supra, 41 Cal.4th at pp. 819-820.) Consequently, McClendon has failed to demonstrate error.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J. ZELON, J.