Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P02CRF0140
HULL, J.A jury found defendant Robert Lindsey Conley guilty of 36 counts charging various sex offenses involving his daughter H. and stepdaughter K. (Pen. Code, §§ 261, subd. (a)(2); 261.5, subds. (c) & (d); 288, subd. (a); 288a, subds. (b)(2), (c)(2); 288.5; unspecified statutory references that follow are to the Penal Code.) The jury also found true charged special allegations. (§§ 667.61, subd. (b); 1203.065, subd. (a); 1203.066, subd. (a)(7).)
Sentenced to 225 years to life plus 24 years 8 months, including the upper term of 16 years on count 24 (continuous sexual abuse; § 288.5), defendant appealed, and on June 14, 2005, this court reversed his convictions on 23 of the 36 counts, finding they were barred by the applicable statute of limitations, and remanded the case to the trial court for resentencing on the remaining 13 counts. On August 11, 2006, the trial court resentenced defendant to 165 years to life plus 16 years, including the upper term of 16 years on count 24.
Defendant appeals, contending that imposition of the upper term on count 24 violates the Sixth and Fourteenth Amendments to the United States Constitution under Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham). We disagree and shall affirm the judgment.
DISCUSSION
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455] (Apprendi), the United States Supreme Courtheld that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be [tried] to a jury, and proved beyond a reasonable doubt.” For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414] (Blakely).)
Accordingly, in Cunningham, the court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point, vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36].)
Applying Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court recently held “that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
Here, in deciding to impose the upper term, the trial court stated: “[U]nder [California Rules of Court,] [r]ule 4.421(a)(1), [defendant] accomplished his predatory acts against the victims with threats of harm or serious consequence to them should they not cooperate. [¶] His acts were carried out in a cruel[,] callous[,] and indifferent manner. He told them that the sexual acts between a father and a daughter is what every father does to their daughter to teach them about sex. . . . [¶] I find also under [r]ule 4.421(a)(3) that the victims were vulnerable. These acts were committed at his home or when he was alone with them when their mother was away. He made threats of ruining the family, of them getting into trouble. He used his sexual conduct acts against them to reward them, allow them to do things that they wanted to do, and which they couldn’t do unless they committed sexual acts with him. [¶] These are clearly predatory acts on his part. [¶] Under [r]ule 4.421(a)(8), these acts were committed by him over the years. H[.] from ages 11 to 17, K[.] from ages 8 to 15 . . . . [¶] Under [r]ule 4.421(a)(11), he obviously violated the most sacred position of trust and confidence that a father can have by committing these acts. [¶] Under [r]ule 4.421(b)(1), his acts demonstrate that he is a serious danger to society. [¶] Under [r]ule 4.421(b)(2), he has a history of criminal conduct dating from 1975 up to and before these offenses in the year 2002. [¶] His priors are numerous and of increasing seriousness.”
The People first assert that defendant forfeited his right to challenge the upper term sentence on count 24 by failing to object “[w]hen the trial court imposed sentence.” We disagree.
Defendant was initially sentenced on December 8, 2003, prior to the court’s decision in Blakely. “[W]ith respect to sentencing proceedings . . . preceding the Blakely decision, a claim of sentencing error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsel’s failure to object at trial.” (Black II, supra, 41 Cal.4th at p. 812.)
Defendant was resentenced on August 11, 2006. Before that, on June 20, 2005, our Supreme Court had decided Black I, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Black I, supra, 35 Cal.4th at p. 1244.) Black I was controlling law at the time of defendant’s resentencing. Defendant was not required to make a futile objection. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)
Relying on People v. Senior (1995) 33 Cal.App.4th 531, 538, the People also assert that defendant forfeited his right to challenge the upper term sentence by failing to raise the issue in his prior appeal. Senior holds “that when a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have [forfeited] the right to raise the issue in a subsequent appeal, absent a showing of good cause for justification for the delay.” (Id. at p. 533.) Although the issue the defendant sought to raise in his subsequent appeal in that case “was technically embraced in [the court’s] remand order, which reopened for the court’s consideration all components of the aggregate sentencing scheme,” the court found the defendant forfeited the issue where “all of the factual predicates upon which [his] present contention rests were available at the time of [his] initial appeal.” (Id. at p. 538.)
At the time defendant’s initial appeal was pending in this case, Blakely was the law and review had been granted in Black I. Thus, the People argue, defendant “could have made the argument in order to preserve it for federal review.” We need not decide whether defendant was required to challenge his upper term sentence based upon the principles established in Blakely and Cunningham in his prior appeal because even assuming he was not required to do so, his challenge fails on the merits.
As pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment does not apply to prior convictions that are used to impose greater punishment. (E.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864.]) In deciding to impose the upper term in this case, the trial court relied on, among other things, defendant’s “history of criminal conduct” and numerous prior convictions which were increasing in seriousness. Contrary to defendant’s contention, these circumstances fall within the prior conviction exception, and he was not entitled to have them proved to a jury beyond a reasonable doubt. (Black II, supra, 41 Cal.4th at p. 820, fn. 9.) Accordingly, the trial court’s reliance on defendant’s prior convictions did not run afoul of the Sixth Amendment.
The trial court’s reliance on additional factors is of no consequence. A defendant’s constitutional right to a jury trial is not violated by the trial court’s imposition of the upper term sentence where at least one aggravating factor was established by means that satisfy the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 816.) Because defendant’s prior convictions rendered him eligible for the upper term sentence, “he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term” on count 24. (Id. at p. 820.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS , Acting P.J., BUTZ , J.