Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM025009
HULL , J.Defendant Merritt George Smalley III, entered a negotiated plea of no contest to petty theft with a prior theft related conviction (Pen. Code, § 666) and admitted a prior conviction which was the basis for elevating the theft to a felony (Pen. Code, §§ 459, 460). In exchange for his plea and admission, the court dismissed an allegation that the admitted prior conviction was a strike (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d)). The parties and the court agreed that defendant reserved his right to argue on appeal that the prior theft conviction that he admitted did not qualify as a prior conviction.
At sentencing, the court found that defendant’s priors were numerous (three felonies and two misdemeanors); he was on parole at the time of the crime; he had been out of prison only 18 days when he committed the crime; and his “prior performance was unsatisfactory.” The court found no factors in mitigation and the probation officer’s report indicated none were present. Concluding that the factors in aggravation outweighed those in mitigation, the court imposed the upper term of three years.
In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), the court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be admitted by the defendant or tried to a jury and proved beyond a reasonable doubt. (Blakely, supra, at pp. 301-303 [159 L.Ed.2d at pp. 412-413].) In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], the court affirmed that the principles of Blakely applied to California’s upper term sentencing scheme, thereby overruling People v. Black (2005) 35 Cal.4th 1238, which had held to the contrary.
Aside from the trial court’s citation to defendant’s multiple prior convictions, the other factors cited by the court were neither admitted by defendant nor found true by a jury beyond a reasonable doubt and, therefore, were legally unavailable to the court for use as aggravating factors.
Nevertheless, Blakely error is not structural error requiring automatic reversal, but is subject to a harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710]. (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 864].)
As noted, the trial court found that defendant’s prior convictions, five in all, were numerous within the meaning of California Rules of Court, rule 4.421(b)(2). While arguably that which constitutes “numerous” prior convictions may be a finding of fact, in this matter, five is numerous under any definition. Had that question been presented to the jury for determination, we are convinced beyond a reasonable doubt the jury would have found defendant’s prior convictions to be numerous, as did the trial judge. And, because defendant had on his record numerous prior convictions and because there were no mitigating circumstances against which to balance those convictions, we are certain beyond a reasonable doubt that the trial court would have assessed the upper term of imprisonment even if the trial judge had not considered the other factors the trial judge mentioned in deciding to impose the upper term.
Facts
Defendant was caught stealing a deli sandwich and a bottle of rum from a market.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
I concur: SIMS , Acting P.J.
I concur in the result: BUTZ , J.