Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA080512. Dewey Lawes Falcone, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted appellant Joshua Carrillo of attempted second degree robbery in violation of Penal Code sections 664 and 211 (count 1), second degree robbery in violation of section 211 (count 2), assault by means likely to produce great bodily injury in violation of section 245, subdivision (a)(1) (count 3), and receiving stolen property in violation of section 496, subdivision (a) (count 4). With respect to counts 1 and 2, the jury found true the allegation that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to the upper term of five years in count 2 as the base term. The trial court added 10 years for the firearm enhancement. On count 1, the trial court imposed one-third the midterm, or eight months, for the attempted robbery and one-third the term, or three years four months, on the firearm enhancement for that count. On count 3, the trial court imposed one-third the midterm, or one year. In count 4, the trial court imposed one-third the midterm, or eight months. The sentences in counts 1, 3, and 4, are to run consecutively to the sentence in count 2. Appellant’s total sentence is 20 years eight months.
Appellant appeals on the ground that his upper term sentence in count 2 and the consecutive sentences in counts 1, 3, and 4 must be reversed because the sentences were based upon factual determinations by the trial court, which resulted in a denial of his right to a jury trial.
FACTS
Because appellant appeals solely on sentencing issues, a brief statement of facts is sufficient. At approximately 11:30 p.m. on January 7, 2004, Johnson Hoang (Hoang) was walking Mary Bui (Bui) to her car, which was parked on the street. A large, dark car pulled up beside them. The driver, a man later identified as appellant, got out of the car and pointed a gun at them while the female passenger remained in the car. The man demanded Hoang’s and Bui’s possessions. After he took Bui’s things and searched Hoang, appellant hit Hoang on the head with the gun and knocked him to the ground. As the car drove off, Bui memorized the first part of appellant’s license plate number.
Appellant was tried along with a codefendant, Ana Raygoza, who abandoned her appeal.
On January 8, 2004, Deputy Steven Moses received a radio call that prompted him to respond to an area where he saw appellant and a female exiting a blue Buick-type vehicle. Appellant and his female companion were detained and the car was searched. Miscellaneous items of property stolen from Hoang, Bui, and the victims of other crimes were found. Hoang and Bui identified appellant in a field showup.
DISCUSSION
I. Proceedings Below
In sentencing appellant, the trial court stated, “The court . . . selects the high-term as to [count 2, the robbery of Bui], the high-term considering the aggravating factors exceed the mitigating factors, number 1. That the crime did involve violence. The crime involved multiple victims. The defendant was on probation or parole at the time of the commission of this crime. And the defendant’s performance on parole or probation prior to this event has not been satisfactory. The court does not find any mitigating circumstances. Therefore, the aggravating circumstances exceed the mitigating circumstances.” The trial court ordered the sentence in count 1 (the attempted robbery of Hoang) to run consecutively “because we had separate acts and separate victims.” The trial court then ordered the sentences in count 3 (assault with a deadly weapon on Hoang) and in count 4 (receiving stolen property) to run consecutively.
II. Argument and Procedural History
In his original brief, appellant contended that the trial court violated appellant’s rights to a jury trial under the Sixth Amendment by imposing the upper term and consecutive terms. According to appellant, any sentence based on the factors cited by the trial court would violate the United States Supreme Court’s holding in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
In our original opinion filed on October 3, 2005, we affirmed the judgment. (People v. Carrillo, B175587 [nonpub. opn.].) Appellants’ petition for review was denied by the California Supreme Court on December 14, 2005 (S138570). The United States Supreme Court granted appellants’ petition for writ of certiorari and, on February 20, 2007, the high court vacated the judgment and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). After the decision in Cunningham, we requested and received supplemental briefing from the parties regarding the effect, if any, of Cunningham and of the California Supreme Court’s recent opinions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) on appellant’s claims.
Except for the discussion of the Cunningham issue, this opinion is substantially the same as the previously-filed opinion.
In his supplemental brief, appellant argues that the mere fact of a prior conviction is a narrow and limited exception to the requirement that aggravating facts must be submitted to the jury and found true beyond a reasonable doubt. He claims that the trial court made fact-based judgment calls and considered a combination of nonrecidivist and (for the sake of argument) recidivist factors in justifying the upper term. The fact that the trial court named several aggravating factors shows that they were all part of the trial court’s decision, and there is not a two-stage process as set forth in Black. Appellant contends that Black is flawed in ways that violate the Sixth and Fourteenth Amendments and its expansionist construction of the recidivist exception is incorrect.
Appellant adds that he was clearly prejudiced by the trial court’s imposition of the upper term in count 2, and he criticizes Sandoval’s reasoning regarding harmless error. Appellant claims that all the evidence was not before the trial court on the sentencing issue, and appellant did not have the same incentive or opportunity to contest the truth of the aggravating factors. Appellant contends that his sentence must be reversed and the midterm imposed.
III. Relevant Authority
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held: “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.” In Blakely, the Supreme Court held 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.” (Blakely, supra, 542 U.S. at p. 303.) In Cunningham, the United States Supreme Court held that California’s determinate sentencing law, which authorizes a judge to find the facts permitting an upper term sentence by a preponderance of the evidence, violates a defendant’s right to trial by jury. (Cunningham, supra, ___ U.S. ___ [127 S.Ct. at pp. 860, 871.) The high court made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum”].) (Cunningham, supra, at p. ___ [127 S.Ct. at p. 868].)
Following the decision in Cunningham, the California 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 fact-finding 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, supra, 41 Cal.4th at p. 812.) Black and its companion case, Sandoval, reiterated that the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836–837.)
IV. Upper Term and Consecutive Sentences Properly Imposed
We conclude that the trial court’s determination that appellant was on parole or probation at the time of the instant offenses and that he performed poorly on parole in the past are the types of findings relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black, supra, 41 Cal.4th at pp. 819–820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370–371.)
California Rules of Court, rule 4.421(b)(4) lists as a factor in aggravation: “The defendant was on probation or parole when the crime was committed.” California Rules of Court, rule 4.421(b)(5) states: “The defendant’s prior performance on probation or parole was unsatisfactory.”
The probation report states that appellant was both on Proposition 36 probation and parole at the time of the instant offenses. The record of his adult history contained in the probation report shows that he violated parole after being released from a 1995 two-year sentence for violating Health and Safety Code section 11377, subdivision (a) and Vehicle Code section 10852, subdivision (a). The record shows appellant was again sentenced to a two-year prison term in 2002 and paroled on August 5, 2003. In November 2003, appellant was arrested for a violation of Health and Safety Code section 11377, subdivision (a) and placed on three years formal probation under Proposition 36. The current offenses occurred on January 7, 2004. Thus, the trial court accurately stated that appellant’s performance on probation and parole was unsatisfactory, and appellant was on probation and parole at the time of the instant crimes. Once the trial court made these determinations, appellant was eligible for the upper term, which became the statutory maximum. (Black, supra, 41 Cal.4th at p. 816.)
The issue whether a trial court can constitutionally impose an upper term based on the fact that the defendant was on parole when the crime was committed, or that the defendant’s prior performance on probation or parole was unsatisfactory without a jury determination, is currently before the California Supreme Court in People v. Towne (review granted July 14, 2004, S125677).
Furthermore, one of the factors that the trial court named in selecting the upper term was that “‘[t]he crime involved multiple victims.’” Although no longer listed as a factor in aggravation in California Rules of Court, rule 4.421, the trial court may nonetheless rely on that factor. (People v. Calhoun (2007) 40 Cal.4th 398, 405–406.) By its verdicts, the jury necessarily found that appellant’s crime involved multiple victims. Thus, the requirements of Cunningham were met as to that factor. (Calhoun, supra, at p. 406.)
We therefore find no violation of Cunningham and appellant’s argument regarding his upper term sentence is without merit. The trial court’s finding of additional facts in support of its discretionary choice of the upper term did not violate appellant’s right to trial by jury. (Black, supra, 41 Cal.4th at pp. 816, 820.) Having concluded there was no violation of the Cunningham principle, we need not engage in a harmless-error analysis.
Although appellant made no further argument in his supplemental brief regarding his consecutive sentences, we note that Black stated, “Cunningham . . . does not undermine our previous conclusion that the imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” (Black, supra, 41 Cal.4th at p. 821.) Black reiterated that “‘Blakely’s underlying rationale is inapplicable to a trial court’s decision whether to require that sentences on two or more offenses be served consecutively or concurrently.’” Thus, the court held that a defendant has no right to a jury determination of the factual circumstances necessary to impose consecutive sentences. (Id. at pp. 821–823.)
As stated previously, appellant challenges the Black decision in several regards. We, of course, are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant’s upper term sentence remains.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.