Opinion
C055606
9-29-2008
THE PEOPLE, Plaintiff and Respondent, v. SIDNEY ROSS DEEGAN, Defendant and Appellant.
Not to be Published
Defendant Sidney Ross Deegan, accused of vandalism (Pen. Code, § 594, subd. (b)(2)(A)), making criminal threats (§ 422), corporal injury to a cohabitant (§ 273.5, subd. (a)), and arson (§ 451, subd. (b)), waived his right to a jury trial. The information also alleged he had served two prior prison terms and was ineligible for probation pursuant to section 1203, subdivision (e)(4). The court found him guilty as charged on all counts except arson, and guilty of the lesser included offense of causing a fire that causes an inhabited structure to burn. (§ 452, subd. (b).) The court sentenced defendant to an aggregate term of seven years in state prison, including the upper term of four years for causing the fire.
We agree with the Attorney General that the underlying facts are irrelevant to the sole issue raised on appeal. Simply put, defendant "physically assaulted his girlfriend, made threats against her, and later set her house on fire." He complains that the court denied his fundamental right to a jury trial by finding the factors in aggravation identified by the prosecution during trial true beyond a reasonable doubt rather than in a posttrial sentencing proceeding. This flawed procedure, he asserts, contravenes the relatively new jurisprudence on a criminal defendants right to a jury trial on various sentencing factors as articulated by the Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi ), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham) and constitutes structural error compelling reversal. Not so.
The trial court found beyond a reasonable doubt that defendant suffered two prior felony convictions, a theft by receiving stolen property and assault by a prisoner. The Apprendi/Blakely/Cunningham formulation of the right to a jury trial simply does not apply to the fact of a prior conviction. Apprendi itself expressly held 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. (Apprendi, supra, 530 U.S. at p. 490.) Thus, defendant had no Sixth Amendment right to a jury determination whether, in fact, he had suffered a prior conviction.
In People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court determined that "the `statutory maximum sentence to which [the] defendant was exposed by the jurys verdict was the upper term, because at least one aggravating circumstance . . . was established by means that satisfy the requirements of the Sixth Amendment." (Black, at p. 816.) Here, because defendant waived a jury, the court found the aggravating circumstance that defendant suffered two prior convictions was established by means that satisfy the Sixth Amendment. (Black, at pp. 819-820.) Under that circumstance, defendants conviction exposed him to a "statutory maximum" sentence of the upper term. (Id. at p. 816.) His sentence did not exceed that maximum.
Defendant attempts to dodge this fundamental flaw in his Sixth Amendment challenge with an elaborate theory that the court had failed to determine his guilt before it considered all the various sentencing factors. Here the prior conviction finding was not subject to any of the alleged risks he identifies. We need not therefore consider his arguments about structural error, or the Attorney Generals insistence that the issue was waived, because there was no error. If the prosecution proves beyond a reasonable doubt, as it did here, that a defendant suffered a prior conviction, there is no Sixth Amendment issue because the existence of one valid aggravating factor is sufficient to expose defendant to the upper term. (Black, supra, 41 Cal.4th at p. 816.)
DISPOSITION
The judgment is affirmed.
We concur:
HULL, J.
CANTIL-SAKAUYE, J. --------------- Notes: All further statutory references are to the Penal Code.