Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. INF53437. Graham Anderson Cribbs, Judge.
William Flenniken, Jr., 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, Senior Assistant Attorney General, Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant Gilbert Contreras Dehoyos appeals his upper term sentence for armed robbery as a violation of his Sixth Amendment right to a jury trial. We will affirm.
Facts and Procedural History
On February 11, 2006, defendant robbed Jose Flores at gunpoint of about $1,200 in cash. On May 18, a jury convicted defendant of one count of second degree robbery (Pen. Code, § 211) and found true an allegation that a principal was armed (§ 12022, subd. (a)(1)). After the verdicts were in, the trial court referred the matter to the probation department for a presentence report.
All further statutory references are to the Penal Code unless otherwise indicated.
The report listed circumstances in aggravation pursuant to the provisions of California Rules of Court, rule 4.421, including that: the manner in which the crimes were carried out indicated planning and sophistication; defendant’s prior convictions were numerous and of increasing seriousness; he was on probation when the current crimes were committed; and his prior performance on probation had been unsatisfactory. The report listed no circumstances in mitigation. Defendant’s record of prior convictions extended from 1988 through 2005, and included forgery (Pen. Code, § 470), being under the influence of a controlled substance (Health & Saf. Code, § 11550), driving under the influence of a controlled substance (Veh. Code, § 23152), reckless driving (Veh. Code, § 23103), and one misdemeanor and two felony convictions for illegal possession of a controlled substance (Health & Saf. Code, § 11377). The two felony drug possession convictions occurred in December 2003 and February 2005. Defendant had four probation violations related to the 2003 conviction.
On July 28, the trial court sentenced defendant to six years in state prison: the upper term of five years for the robbery, plus one year for the firearm enhancement. When discussing its indicated sentence, the court explained its inclination to select the upper term for the robbery by referring to the aggravating factors listed in the probation report, adding: “Mr. Dehoyos has been convicted of two prior felonies, and if my memory serves me correctly, these prior felonies occurred somewhere in the neighborhood of—let me put it this way, after the year 2000, I believe 2001 and maybe 2002 or 2003.” “[A]nd, thus, the Court feels justified in imposing the upper term in terms of making findings pursuant to the case of Blakely.” (Italics added.) Defense counsel then argued that almost all of the factors suggested by the probation report as aggravating circumstances, except for the prior convictions which counsel did not mention, should be discounted and that his client should receive the middle term.
In the probation report in our original appellate record, pages 7 and 8 are duplicates and document defendant’s priors only for offenses committed in 1988, 1994, 1997, and 1998. We requested and have received the correct page 8 from the probation report. This page documents offenses committed in 2003, 2004, and 2005, including the two felonies to which the court was referring.
Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely).
Discussion
Defendant asserts that the court’s selection of the upper term deprived him of his Sixth Amendment right to jury trial as interpreted by the United States Supreme Court in Blakely, supra, 542 U.S. 296, Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). The Attorney General replies that defendant forfeited his right to appeal this issue by failing to object at sentencing and that in any case, because the court used his prior convictions as one basis for its decision to select the upper term, there was no Cunningham violation. We find that defendant’s claim has not been forfeited, but agree with the Attorney General that the trial court’s use of his prior convictions as the basis for its selection of the upper term was appropriate under Cunningham.
A. Forfeiture:
The People are correct that a criminal defendant’s failure to object to an erroneous ruling in the trial court ordinarily forfeits the right to raise the claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354; In re S.B. (2004) 32 Cal.4th 1287, 1293.) The purpose of the rule is to encourage parties to bring errors to the attention of the trial court so that they may be corrected at the time they are made rather than to remain silent in hopes of prevailing on appeal. (Sommer v. Martin (1921) 55 Cal.App. 603, 610; In re S.B., supra, at p. 1293.) However, “An objection in the trial court is not required if it would have been futile.” (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4, citing People v. Welch (1993) 5 Cal.4th 228, 237-238.)
Here, as the case law stood at the time of defendant’s sentencing, any objection in the trial court would have been futile. (People v. Black, 41 Cal.4th 799, 810-811; People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) Accordingly, his claim is not forfeited.
B. Blakely, Apprendi, and Cunningham:
In Blakely, the Supreme Court held that an increased sentence for kidnapping based on judicial finding that the crime had been committed with “deliberate cruelty” violated the Sixth Amendment as interpreted in its earlier decision in Apprendi: “‘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.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) Further, “Our precedents make clear . . . 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, at p. 303.) “In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Id. at pp. 303-304.)
In Cunningham, the Supreme Court weighed our state’s sentencing scheme in light of Blakely and Apprendi and found it, like Washington’s, wanting. It is unconstitutional under the Sixth Amendment, the court said, for a trial court to impose an aggravated (upper) term above the relevant statutory maximum (middle) term using factors found true under only a preponderance-of-the-evidence standard of proof. (Cunningham, supra, 127 S.Ct. at pp. 868, 870.) The court overruled the part of People v. Black (2005) 35 Cal.4th 1238, which had held otherwise. (Cunningham, supra, at p. 871.) However, recidivism as reflected by a record of prior convictions is an exception to the rule requiring that any factor used to increase a defendant’s sentence must be admitted by the defendant or found by a jury. (Almendarez-Torres v. United States (1998) 523 U.S. 224, 246-247 [118 S.Ct. 1219, 140 L.Ed.2d 350]; Apprendi, supra, 530 U.S. at p. 488; Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, at pp. 863-864, 868; People v. Black, supra, 41 Cal.4th at p. 818.)
Here, the trial court specified that it was defendant’s prior felony convictions, the exception to the Apprendi and Blakely rule that any fact used to increase a criminal defendant’s prison sentence must be admitted by the defendant or proven by a jury, that formed the ultimate basis for its decision to select the upper term for his latest crime. Indeed, the court directly referred to Blakely to emphasize its awareness of both the rule of that case and the exception to the rule.
Disposition
The judgment is affirmed.
We concur: McKINSTER, J., GAUT, J.