Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F06901601-5. Kent W. Hamlin, Judge.
Monica Lynch, 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, Louis M. Vargas and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Dawson, J., Kane, J.,
OPINION
A jury convicted appellant Antonio Gonzalez Chavez of felony driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1); in a separate proceeding, the court found true allegations that appellant had suffered three prior convictions of driving while having a blood alcohol content level of .08 percent or more (Veh. Code, § 23152, subd. (b)), within the meaning of Vehicle Code section 23550; and appellant pled guilty to driving at a time his driving privilege had been revoked or suspended for driving while under the influence of alcohol (Veh. Code, § 14601.2, subd. (a); count 3), a misdemeanor. The court imposed the three-year upper term on count 1. The court also found appellant to be in violation of probation in a separate case, and imposed a concurrent term in that case.
On appeal, appellant contends he was denied his “rights to trial by jury and proof beyond a reasonable doubt” under the United States Constitution because the trial court imposed the upper term on count 1 based on its own findings of certain aggravating factors. The People argue appellant has forfeited this claim because he did not raise it at sentencing, and that in any event, appellant’s challenge to the imposition of the upper term is without merit. We will affirm.
BACKGROUND
The court sentenced appellant on August 21, 2006. The court found no circumstances in mitigation and found the following as circumstances in aggravation: appellant had been convicted of other crimes for which consecutive sentences could have been imposed, he had suffered numerous prior convictions, “perhaps, not of increasing seriousness, but of consistent seriousness”; he had served a prior prison term; he was on probation when the instant offense was committed; and his prior performance on parole or probation has been unsatisfactory. There is no dispute, and we conclude, that each of these factors is supported by the record.
DISCUSSION
The Law
In Apprendi v. New Jersey (2000) 530 U.S. 466 (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.” (Id. at p. 490.) The high court reaffirmed this rule in Blakely v. Washington (2004) 542 U.S. 296, 301 [124 S.Ct. 2531, 2536] (Blakely).
In 2005, in People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court held that the imposition of upper terms under the version of California’s Determinate Sentence Law (DSL) then in effect did not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
The Legislature has amended the DSL. (Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007.) All references to the DSL are to that statute as it read prior to this amendment.
Subsequently, in January 2007, the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) considered whether the DSL violates the constitutional principles set forth in Apprendi and Blakely. Concluding that Black I was wrongly decided, the high court held: “Under California’s DSL, an upper term sentence may imposed only when the trial judge finds an aggravating circumstance. [Citation.] … [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, ... the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.] (‘[T]he “statutory maximum” ... 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.’ (emphasis in original)). Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates [the] … bright-line rule [announced in Apprendi and reaffirmed in Blakely]: Except 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.)
In July 2007, the California Supreme Court, in People v. Black (2007) 41 Cal.4th 799 (Black II), held that the exception to the jury trial requirement recognized in Apprendi, Blakely, and Cunningham for the “fact of a prior conviction” (Black II, supra, 41 Cal.4th at p. 818) applies not only to the fact that a conviction occurred, but also to determinations that a defendant has suffered numerous prior convictions of increasing seriousness (id. at pp. 819-820).
The Black II court also held the existence of even one aggravating factor, properly found in accordance with Cunningham and its antecedents, is sufficient to make a defendant constitutionally eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at p. 813.) In such a case, the court may then rely upon other factors not determined in accordance with Cunningham, in its exercise of sentencing discretion. (Ibid.) The imposition of an upper term under those circumstances does not violate the defendant’s constitutional right to trial by jury. (Id. at p. 816.)
In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), decided the same day as Black II, our Supreme Court held that the trial court, in imposing an upper term based on aggravating factors that were based on the facts of the underlying crime, none of which were admitted by the defendant or found true by the jury, violated the defendant’s Sixth Amendment right to trial by jury. (Sandoval, supra, 41 Cal.4th at pp. 837-838.) The court also held the error was not harmless. (Id. at p. 843.) Finally, the court rejected the People’s argument that the defendant’s challenge to his sentence was forfeited by the defendant’s failure to object at sentencing, because the defendant was sentenced after the decision in Black I, which was binding on trial courts, and therefore a request for a jury trial would have been futile. (Sandoval, at p. 837, fn. 4.)
Forfeiture
As indicated above, appellant was sentenced in 2006, after the decision in Black I and before the Supreme Court’s decision in Cunningham. Therefore, notwithstanding appellant’s failure to object, his challenge to the imposition of the upper term is properly before us. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
The Merits
As also indicated above, the trial court in the instant case imposed the upper term on count 1 based on, inter alia, its finding that appellant had suffered numerous prior convictions of “consistent,” if not increasing, seriousness. Thus, the court based its upper term decision, in part, on at least one factor falling within the prior conviction exception. (Black II, supra, 41 Cal.4th at pp. 819-820.) And because one aggravating factor was established in accordance with constitutional requirements, the imposition of the upper term did not violate appellant’s right under the United States Constitution to trial by jury. (Id. at p. 813.)
We offer no opinion as to whether any of the other circumstances in aggravation found by the court fall outside the prior conviction exception to the Apprendi/Blakely/Cunningham rule.
DISPOSITION
The judgment is affirmed.