Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FVA701452. Jon D. Ferguson, Judge.
Leonard J. Klaif, 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, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Aaron Darnell Carter appeals his jury conviction for first degree burglary. (Pen. Code, § 459.) He claims the trial court violated his constitutional right to a jury trial, because it imposed the upper term based on facts that were not found true by a jury.
All further statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
At defendant’s trial, the prosecution presented evidence indicating defendant broke into a garage. He then telephoned friends and asked them to drive their van to the garage. When the friends arrived, two motorcycles, a vacuum, a DVD player, and a computer screen were loaded into the van. These items were then unloaded into the backyard of another friend. Defendant then reported to a counseling class he was required to attend.
The jury convicted defendant of first degree burglary. (§ 459.) In a bifurcated proceeding, the trial court found defendant had served a prior prison term within the meaning of section 667.5, subdivision (b). As a result, the trial court sentenced defendant to the upper term of six years, plus one year for the prior prison term enhancement, for a total of seven years in state prison.
DISCUSSION
In imposing the upper term of six years, the trial court relied on defendant’s “extensive prior record of criminal conduct” and his parole status at the time the offense was committed. Defendant contends this violated his constitutional right to a jury trial, because he did not admit these facts and they were not found true by a jury. Defendant acknowledges the line of cases indicating a defendant’s right to a trial by jury does not extend to the fact of a prior conviction that is used to justify imposing an upper term (i.e., the prior conviction exception). However, he believes the United States Supreme Court has not squarely addressed the existence or scope of the exception. He also believes the principles set forth by the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) are inconsistent with the exception. As a result, he believes it is likely the Supreme Court will either do away with the exception or interpret it narrowly to apply only to the fact of a prior conviction and not to a broad range of recidivist factors, such as unsatisfactory performance on parole. He therefore argues we should remand his case for a new sentencing hearing or modify the judgment by reducing his sentence to the middle term rather than the upper term. We disagree.
As defendant acknowledges, the prior conviction exception is based on the United States Supreme Court’s decision in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres). Since then, the United States Supreme Court has made reference to and thereby reaffirmed the existence of the prior conviction exception on at least two occasions. In Apprendi, supra, 530 U.S. 466, 490, the United States Supreme Court held that a criminal defendant’s right to a jury trial is violated when a sentencing scheme allows a trial court to increase a criminal penalty beyond the prescribed statutory maximum based on a fact, other than a prior conviction, which was not admitted by the defendant or found true by a jury. Later, the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham) considered the constitutionality of California’s determinate sentencing law (DSL) in light of the holding in Apprendi. Formerly, section 1170, subdivision (b), of the DSL provided that “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Former § 1170, subd. (b).) In Cunningham, the United States Supreme Court concluded former section 1170, subdivision (b), violated the rule set forth in Apprendi, to the extent it created a presumption which rendered the middle term the statutory maximum and allowed trial courts to impose an aggravated upper prison term based on a fact, other than a prior conviction, which was not found by a jury or admitted by the defendant. (Cunningham, supra, 549 U.S. at p. [127 S.Ct. at pp. 860, 871].)
In response to Cunningham, our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 815, citing People v. Osband (1996) 13 Cal.4th 622, 728, concluded a remand for resentencing is unnecessary where the record shows that in imposing an upper term the trial court relied on a single aggravating factor, which meets constitutional standards, such as the defendant’s criminal history, even if the court also relied on other factors. (Black, at pp. 815-820.) The California Supreme Court has interpreted the prior conviction exception broadly to include not only the fact of a prior conviction but other related issues that may be determined from an examination of court records. (Ibid.)
Most recently, our Supreme Court in People v. Towne (2008) 44 Cal.4th 63, 82, confirmed that a defendant’s unsatisfactory performance on probation or parole falls within the Almendarez-Torres exception. Pursuant to Towne, prior unsatisfactory performance on probation or parole is an aggravating circumstance that falls within the prior conviction exception as long as the defendant’s record of prior convictions shows he or she was on probation or parole when he or she incurred a new conviction. (Ibid.) We are bound by all of the above-referenced decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, it is undisputed the trial court imposed the upper term by relying on two aggravating factors that fall within the prior conviction exception. First, the trial court cited defendant’s “extensive prior record of criminal conduct.” The probation report supports the trial court’s reliance on this factor; it lists five prior convictions for battery, vehicle theft, possession of a controlled substance, burglary, and corporal injury to a cohabitant. Second, the trial court cited defendant’s parole status at the time the current offense was committed. The probation report indicates defendant was indeed on parole in another case when he committed the new offense in this case.
The record also indicates defendant was sentenced on May 23, 2008. In response to Cunningham, the Legislature amended the DSL effective March 30, 2007. (Stats. 2007, ch. 3, § 2; People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2 (Sandoval).) As a result, defendant was not sentenced under the sentencing scheme found unconstitutional in Cunningham. Because of these amendments, trial courts now have the discretion under section 1170, subdivision (b), to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Sandoval, at p. 847, citing § 1170, subd. (b), as amended.) Rather, “a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.” (Sandoval, at p. 848.) In other words, these amendments to the DSL essentially eliminated the middle term as the statutory maximum absent aggravating factors. In Sandoval, at pages 845-857, our Supreme Court held it is constitutionally appropriate to apply the amended version of the DSL in all sentencing proceedings conducted after the effective date of the amendments. We are bound by the Sandoval decision. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In sum, under binding precedent, defendant did not have a right to a jury trial on the factors the trial court relied on in selecting the upper term. He is therefore not entitled to a modification of his sentence or a remand for resentencing.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J. RICHLI J.