Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County Super. Ct. No. MCR025579. John W. DeGroot, Judge.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Defendant Lorraine Bustos, a prison inmate, was convicted of battery on a nonconfined person. She received a sentence of five years, consisting in part of the four-year upper term. She now argues that the imposition of the upper term is in conflict with the United States Supreme Court’s recent decisions in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Our Supreme Court’s recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II) is dispositive of this issue and requires affirmance.
FACTUAL AND PROCEDURAL HISTORIES
While an inmate at Valley State Prison for Women, defendant reached through a window where a medical technical assistant was distributing medications and struck the assistant. The district attorney filed an information charging one count of battery on a nonconfined person (Pen. Code, § 4501.5 ). The information also alleged that defendant had served prior prison terms for two offenses (§ 667.5, subd. (b)).
Subsequent statutory references are to the Penal Code.
The jury found defendant guilty as charged and found true one prior prison-term allegation. The court struck the other prior prison-term allegation.
At sentencing, the court imposed the upper term of four years for battery on a nonconfined person plus an enhancement of one year based on the prior prison term. This sentence was to be served consecutively to the sentence defendant was already serving.
DISCUSSION
In Blakely, the United States Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with “‘deliberate cruelty’” and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: “‘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.’” (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the state’s sentencing law did not allow the sentence to exceed 53 months without judicial fact finding. “Our precedents make clear … that the ‘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.” (Id. at p. 303.) The court continued:
“In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.” (Blakely, supra, 542 U.S. at pp. 303-304 .)
On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law as it stood then was erroneous, therefore, unless it was supported by prior convictions, facts found by the jury, or facts admitted by the defendant.
It has since been amended in response to Cunningham. (Stats. 2007, ch. 3; see Black II, supra, 41 Cal.4th at p. 808, fn. 2.)
After defendant filed her opening brief in this case, but before the People’s brief and defendant’s reply brief were filed, the California Supreme Court filed its opinion in Black II. It held that the upper term imposed in that case was not erroneous under Cunningham because it was authorized by the defendant’s prior offenses and the jury’s finding that the defendant committed the offense by means of force and fear. (Black II, supra, 41 Cal.4th at pp. 816-817, 818.) Whether the trial judge would have imposed the upper term based on one of these factors alone was irrelevant; the question was only whether it could have done so under the sentencing law. It could: California’s determinate sentencing law allows the trial court to impose the upper term based on a single aggravating factor. Each of these two factors authorized the upper term independently under California law and each was independently established by means consistent with the Sixth Amendment as interpreted in Blakely and Cunningham. The presence of either one alone would have been sufficient to render the upper term constitutional. (Black II, supra, at pp. 813, 814-815, 820.)
Black II makes clear that the trial court need not have relied expressly on one of the factors approved by Blakely and Cunningham so long as one of those factors was present in the record and the court was aware of it. The trial court in Black did not assert at sentencing that it was using the defendant’s prior convictions as an aggravating factor in support of the upper term. Instead, it said it was imposing the upper term because of “‘the nature, seriousness, and circumstances of the crime.’” (Black II, supra, 41 Cal.4th at p. 816.) It also stated that it considered “other aggravating circumstances set out in the district attorneys’ sentencing brief.” These included the defendant’s criminal history. The probation report included defendant’s criminal history also. This was sufficient even though the trial court did not mention defendant’s criminal history explicitly. (Id. at p. 818.)
Further, where a factor properly established under the Sixth Amendment is present, the court’s reliance on other factors that would not satisfy the Sixth Amendment on their own does not undermine the sentence:
“[S]o 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 to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
In light of all this, it is clear there was no constitutional error in the imposition of the upper term in this case. The court gave its reasons for its sentencing decision as follows:
“The Court has read and considered the Report and Recommendation of the probation officer. The Court will note that the consecutive sentences are mandated by Penal Code Section 4501.5.
“With regard to circumstances in aggravation, the defendant’s prior convictions qualify as numerous; she has served prior prison terms and her prior performance on probation or parole has been unsatisfactory as evidenced by her commission of new law violations while on probation and parole and violation of probations and parole.
“The Court will note that the defendant is presumptively ineligible for probation, pursuant to section 1203, subdivision [(e)(4)] of the Penal Code, unless the Court finds that there are unusual circumstances where the interests of justice would best be served by granting probation, and the Court cannot find any justification for granting probation.
“Therefore, as to Count 1, a felony violation of Section 4501.5 of the Penal Code, the defendant is ordered to serve four years state prison, the aggravated term .…
“In addition, she’s ordered to serve one year state prison consecutive enhancement pursuant to Section 667.5, subdivision (b), of the Penal Code.
“The aggregate term in state prison is five years.”
According to the probation report, defendant’s criminal record included seven felony convictions, two violations of probation, and one violation of parole. The felonies were drug trafficking in 2005 (§ 11379, subd. (a)); auto theft in 2002 (Veh. Code, § 10851, subd. (a)); taking or withholding a child from the child’s lawful custodian in 1995 (§ 278.5); and four counts of forgery in 1993 (§ 470, subd. (a)).
Under Black II, this record is sufficient to support the upper term. All of the aggravating factors the court relied on presupposed prior convictions: numerous prior convictions, prior prison terms, and unsatisfactory performance on prior probation and parole. At least one of these—defendant’s numerous prior convictions—cannot meaningfully be distinguished from Blakely’s formulation, approving the use of “‘the fact of a prior conviction’” (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several. In fact, a report of numerous or increasingly serious prior convictions in the probation report and the prosecutor’s brief was just what the Supreme Court found adequate in Black II, rejecting the argument that this is not the same thing as the simple fact of a prior conviction:
“Defendant contends he was entitled to a jury trial on the aggravating circumstance of his prior criminal history because, even if the trial court properly may decide whether a defendant has suffered a prior conviction, a jury must determine whether such convictions are numerous or increasingly serious. Defendant, however, reads the ‘prior conviction’ exception too narrowly.” (Black II, supra, 41 Cal.4th at p. 819.)
In her reply brief, defendant appears to argue either that Black II did not hold that a finding of numerous prior convictions is within the prior-convictions exception, or that Black II was wrongly decided in its application of the prior-convictions exception. The first of these contentions is incorrect for the reasons we have just given. We have no authority, of course, to agree with the second. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant also argues that if the court was relying, in imposing the upper term, on the prior prison-term allegation found true by the jury, it violated the dual-use prohibition set forth in section 1170, subdivision (b), because the one-year enhancement was also based on that finding. Since the other components of defendant’s criminal record sufficed to support the upper term and render it constitutional, we need not address this argument.
In sum: Since the upper term was authorized by defendant’s prior convictions, the court did not err under Blakely and Cunningham in imposing the upper term.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Harris, J.