Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. BA293781 Michael S. Luros, Judge.
A. William Bartz, 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, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Moses R. Delgado appeals from the judgment entered after a jury convicted him of one count of attempted second degree robbery (Pen. Code, §§ 664/211), and eight counts of second degree robbery (§ 211). The jury found true the allegation that as to all counts, appellant had personally used a handgun and that a principal was armed with a handgun during the commission of the offenses. (§ 12022.5, subd. (b); 12022, subd. (a)(1).) The trial court found true that appellant had a prior “strike” conviction (§ 1170, subds. (a)-(d); 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)(1).)
All further statutory references are to the Penal Code.
CONTENTIONS
Appellant contends that the trial court’s reliance on mixed factors resulted in an unconstitutional sentence because “the question whether appellant was on probation or parole at the time of the offense cannot be determined merely by looking at the record of his prior conviction and reviewing the relevant statutes.”
FACTS AND PROCEDURAL HISTORY
Between October 29, 2005 and November 15, 2005, appellant committed nine armed robberies of small shops in Los Angeles, including Subway Restaurant, Payless Shoe Store, clothing and discount stores. The trial court imposed the upper term on count 9 citing as a factor in aggravation, appellant’s recidivist conduct which was a serious danger to society. The trial court noted that appellant had stated that he had committed so many robberies, he could not recall how many he had committed; that he had served a prior prison term; that he had numerous convictions; and that his prior performance on probation or parole was unsatisfactory. The trial court also noted as a factor in aggravation that the child victim in one of the robberies was particularly vulnerable and that appellant was armed with and used a weapon at the time of the commission of each of the crimes.
Appellant was sentenced to a total term of 67 years in state prison. In count 9, the trial court imposed the upper term of five years, doubled to 10 years under the “Three Strikes” law, plus five years for the prior serious felony conviction and 10 years for the personal firearm use enhancement. In count 1, the trial court imposed a consecutive term of eight months (one-third the midterm of 24 months), doubled to 16 months under the Three Strikes law, plus three years and four months for the personal firearm use enhancement. On the remaining counts, the trial court imposed consecutive terms of one year each (one-third the midterm of three years), doubled to two years under the Three Strikes law, plus three years and four months each for the personal firearm use enhancement.
DISCUSSION
Appellant contends that, under the dictates of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), the imposition of the upper term violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to proof beyond a reasonable doubt of aggravating factors used to support that sentence. Appellant’s contentions lack merit. For the reasons set forth in People v. Black (2007) 41 Cal.4th 799 (Black), we find no constitutional violation in the trial court’s imposition of the upper term.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court 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 submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The Supreme Court subsequently held 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 v. Washington (2004) 542 U.S. 296, 303 (Blakely).) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at __ [127 S.Ct. at p. 868].) The court therefore concluded that the California determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Id. at p. 871.)
However, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.) Thus, appellant’s first contention, that his right to jury trial was violated because the trial court relied on multiple factors including that a child victim was particularly vulnerable, and that appellant was armed with and used a weapon at the time of the commission of each of the crimes, must fail.
As appellant acknowledges, the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, 41 Cal.4th at p. 818; People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Moreover, the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black, supra, at p. 819.)
The trial court’s determination that appellant had suffered a prior conviction and performed unsatisfactorily on probation or parole are the types of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black, supra, 41 Cal.4th at pp. 819-820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) The probation report listed the number, dates, and offenses of appellant’s prior convictions, which showed that appellant was a serious danger to society and that his crimes were of increasing seriousness. Once the trial court made this determination, appellant was eligible for the upper term, which became the statutory maximum. (Black, supra, at p. 816.) Therefore we find no violation of Cunningham.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.