Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR054879
SIMONS, Acting P. J.
By information, appellant Cesar Reyniery Rodriguez was charged with four counts of child sexual abuse (Pen. Code. § 288, subd. (a)). Counts 1 and 2 alleged lewd and lascivious acts upon victim Jane Doe No. 1, a person under the age of 14 years, between January 2003 and December 2004. Counts 3 and 4 alleged lewd and lascivious acts upon victim Jane Doe No. 2, also a person under the age of 14 years, on August 10, 2005. Appellant entered a negotiated plea of guilty on May 5, 2006 to counts 1 and 3. As part of the plea agreement, counts 2 and 4 were dismissed and the sentence left open to the court.
At the sentencing hearing on June 2, 2006, the court found: “[T]he prior convictions are numerous and increasing in seriousness. There’s also the fact that [appellant] was on probation when the matter was committed, (b)(4). Does not appear that there are any circumstances under 4.423 in mitigation.” The trial court then sentenced appellant to the upper term of eight years on count 1 and a consecutive term of two years on count 3, for an aggregate term of 10 years in state prison. Appellant relies on Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] (Cunningham) to challenge imposition of the upper term on count 1. We affirm.
Discussion
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court interpreted the Sixth Amendment to the United States Constitution to require 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. (Apprendi, supra, at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by defendant; thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington, supra, 542 U.S. at pp. 301-305.) In Cunningham, the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 127 S.Ct. at p. 860, overruling on this point People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) 549 U.S. ___ [127 S.Ct. 1210].) Finally, in People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court held that “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 jury trial.” (Black II, supra, at p. 812.)
Respondent relies on People v. Hill (2005) 131 Cal.App.4th 1089, 1103, to argue that appellant has forfeited his right to challenge the sentence because he did not raise an objection under Blakely at the time that sentence was imposed. However, sentencing occurred following our Supreme Court’s decision in Black I that Blakely did not apply to the California determinate sentencing scheme, and a Blakely objection would, therefore, have been futile. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, no forfeiture occurred.
Respondent next relies on Almendarez-Torres v. United States (1998) 523 U.S. 224, 226 to argue that the recidivism exception to Blakely and Cunningham applies. We agree. As the United States Supreme Court held in Cunningham, “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 860], italics added.) Moreover, the recidivism exception has been broadly defined by our Supreme Court to go beyond the mere fact of a prior conviction to include matters such as the sentence imposed and the timing of a defendant’s incarceration in relation to subsequent offenses. (Black II, supra, 41 Cal.4th at p. 819-820; see People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.)
One of the aggravating factors relied upon by the trial court was that appellant was on probation at the time of the commission of the offenses in this case. The probation report’s “recitation of [appellant’s] criminal history was not challenged by [appellant] in the trial court” (Black II, supra, 41 Cal.4th at pp. 818-819, fn. 7), and it provides an adequate basis for the trial court’s factual findings regarding this aggravating factor. Moreover, appellant is not entitled to a jury finding on this recidivist factor; the trial court may properly decide it. (Black II, at p. 819, fn. 8.) The determination that such a factor is true requires no more than a comparison of the length of probation imposed in prior cases and the date of the current offense. As Black II held in analogous circumstances, “This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ ” (Black II, supra, at p. 820.) Because this factor was properly relied upon by the trial court, no Blakely/Cunningham error occurred.
Disposition
The judgment is affirmed.
We concur: GEMELLO, J., NEEDHAM, J.