Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Douglas E. Weathers, Judge., Super.Ct. No. SWF014259.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
King, J.
Defendant entered an open plea of guilty to three counts of cohabitant abuse (Pen. Code, § 273.5, subd. (a)) and one count of false identification to a police officer (§ 148.9, subd. (a)). Defendant further admitted the truth of allegations that he had suffered two prior prison terms (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The trial court sentenced defendant to the upper term on the principal count. On appeal, defendant contends the trial court violated his Sixth Amendment (U.S. Const., 6th Amend.) right, via the Fourteenth Amendment (U.S. Const., 14th Amend.), to a jury trial finding on those factors it used in justifying imposition of the upper term. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).) However, defendant’s prior conviction record reveals at least one aggravating circumstance, not used as an enhancement, which rendered him eligible for an upper term sentence. Therefore, the trial court acted appropriately in imposing the aggravated term and the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
On three different dates in October 2005, defendant and his girlfriend engaged in drunken arguments during which defendant physically abused her. On the first occasion on October 21, 2005, defendant whipped her with an extension cord and burned her left buttock with a heated smoking pipe. On October 25, 2005, defendant hit her on the left side of her face with an open hand. On the final occasion on October 29, 2005, defendant hit her in the mouth. The victim suffered numerous injuries due to defendant’s behavior, including welts, bruising, a burn mark, and a swollen and bloody lip. The victim left defendant a few days after the last incident and reported each episode to the police a few days thereafter.
The police showed up at defendant’s residence with a warrant for his arrest and found him in the rear bedroom. When questioned, defendant told the officer his name was “Ramone.” After the victim completed her trial testimony on direct, defendant entered an open plea of guilty to all charges and allegations.
The trial court imposed an aggregate sentence of 14 years in prison, consisting of the upper term on count 1, four years, doubled pursuant to the strike prior; one-third the midterm, one year, consecutive, doubled pursuant to the strike prior on counts 2 and 3; an additional year for each of the two prior prison terms, and 180 days on count 4 to be served concurrently to counts 1 through 3.
II. DISCUSSION
Defendant claims the trial court erred in imposing the upper term on count 1 and that the matter must be remanded for resentencing in light of the United States Supreme Court’s recent decision in Cunningham (imposition of upper term sentence based on facts found by judge under California’s determinate sentencing law (DSL) violates Sixth and Fourteenth Amendment right to jury trial). For the reasons explained below, we conclude that the trial court’s imposition of the upper term was proper.
“[T]he 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.” (Cunningham, supra, 127 S.Ct. at p. 860.) In Cunningham, the United States Supreme Court held that by placing sentence-elevating factfinding within the trial judge’s province, California’s DSL violates a criminal defendant’s right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, supra, at p. 860.) The Cunningham court explained that because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the California DSL violates the bright-line rule in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Cunningham, supra, at p. 868.) Quoting Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) for the proposition that “‘[t]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,’” the Cunningham court concluded that “[i]n accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, at p. 868.)
Cunningham did reaffirm the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi that “[e]xcept for 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.’ [Citation.]” (Cunningham, supra, 127 S.Ct. at p. 868, italics added, quoting Apprendi, supra, 530 U.S. at p. 490.) The Almendarez-Torres/Apprendi exception is sufficiently broad to encompass all matters ascertainable from the face of the prior judgment of conviction. (People v. Black (2007) 41 Cal.4th 799, 818-820; People v. McGee (2006) 38 Cal.4th 682, 707-709; People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) The United States Constitution does not mandate a jury trial on prior convictions, and any right to a jury trial would be purely statutory. (Apprendi, supra, at pp. 487-490; People v. Epps (2001) 25 Cal.4th 19, 23; see § 1025.) By statute in California, a defendant is afforded a jury trial only as to the fact of those prior convictions alleged in the accusatory pleading as statutory sentence enhancements. (§ 1025; People v. Epps, supra, at pp. 29-30.) Prior convictions considered as aggravating factors for the purpose of imposing the upper term may be determined by the court upon facts shown in the probation report, as the trial court did here, and need be established only by a preponderance of the evidence. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) “[A]s 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.” (People v. Black, supra, 41 Cal.4th at p. 812.)
Here, as shown in the probation report, defendant had a prior criminal record which included 10 adult convictions, six of which were felony convictions. Even excepting the two prior felony convictions which were used as section 667.5, subdivision (b) enhancements and one of which was used as a prior strike, the trial court still had before it defendant’s remaining four prior felony convictions. In imposing the upper term, the trial court recognized that defendant had a “lengthy and overwhelming [criminal] history . . . .” Therefore, the trial court had before it at least a single aggravating factor for which imposition of the upper term was proper.
III. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.