Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. DF007238A, Kenneth C. Twisselman II, Judge.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Brian Alvarez, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.
A jury found appellant, Raul Juarez Duarte, guilty of burglary of an inhabited dwelling (count 1/Pen. Code, § 460, subd. (a)), possession of methamphetamine (count 2/Health & Saf. Code, §11377, subd. (a)), receiving stolen property (count 3/Pen. Code, § 496, subd. (a)), and misdemeanor possession of drug paraphernalia (count 4/Health & Saf. Code, 11354). In a separate proceeding the court found true a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
On June 27, 2005, the trial court sentenced Duarte to an aggregate seven-year term as follows: the upper term of six years on count 1, a one-year prior prison term enhancement, a concurrent term on count 2, and stayed terms on counts 3 and 4. On that same date Duarte filed a timely appeal.
On December 22, 2005, Duarte filed his opening brief citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely) to argue that the imposition of the aggravated term based on facts not found true by a jury beyond a reasonable doubt violated his Sixth Amendment right to a jury trial.
On July 25, 2006, we relied on People v. Black (2005) 35 Cal.4th 1238 to reject this contention.
On August 30, 2006, Duarte petitioned for review in the California Supreme Court. Following the denial of this petition, on October 17, 2006, Duarte petitioned for a writ of certiorari in the United States Supreme Court.
On January 22, 2007, the United States Supreme Court issued its opinion in Cunningham v. California (2007) __ U.S. ____ [127 S.Ct. 856] (Cunningham), holding that Blakely applies under California law.
On February 20, 2007, the United States Supreme Court granted Duarte’s petition for writ of certiorari, vacating the judgment in this matter and remanding it back to this court for further consideration in light of Cunningham.
On April 19, 2007, Duarte filed a supplemental brief again arguing that under Cunningham the imposition of the aggravated term based on facts not found true by a jury violated his right to a jury trial under the Sixth and Fourteenth Amendments. We will reject this contention and affirm.
FACTS
On October 22, 2004, Duarte and his wife broke into an apartment and took various items, including electronic equipment and jewelry. The following day Duarte was arrested after police officers found him sleeping in his car with a glass pipe and other drug paraphernalia on his lap. A search of Duarte uncovered two baggies containing methamphetamine.
Duarte’s probation report indicates that from February 9, 1993, through September 3, 2003, Duarte committed three misdemeanor offenses and three felony offenses. He committed two of the misdemeanor offenses and two of the felony offenses while he was on grants of misdemeanor and felony probation. He was on parole when he committed the offenses underlying the instant matter.
At the beginning of Duarte’s sentencing hearing, Pastor Luis Bustillo informed the court that he spoke to the victims and they were willing to drop the charges if Duarte returned the stolen items to them. Bustillo subsequently accompanied Duarte’s wife when she returned all the items except the birth certificates belonging to the victims’ children. Additionally, after the victims demanded monetary compensation, Duarte’s wife gave them a bedroom set belonging to her and Duarte. When the court noted that it was Duarte’s wife who had actually returned the stolen property, Bustillo stated that Duarte told his wife where the property was located. Defense counsel then argued that the restitution of property to the victims and the additional giving of a bedroom set to them were unusual circumstances that allowed the court to grant Duarte probation. Alternatively, defense counsel argued that these actions mitigated Duarte’s conduct, which warranted the lower term of two years.
However, in sentencing Duarte to the aggravated term on count 1, the court stated:
“Well, I think the one thing we can all agree on is Mr. Duarte was fortunate to marry the woman that he married. It sounds like she has good intentions and is a person who accepts responsibility.
“Unfortunately, Mr. Duarte, through his ongoing behavior, has proven himself to be a person who is unwilling to accept responsibility for his own conduct. He continues to engage in patterns of criminal behavior. I appreciate that drug use and drug dependency create lots of stresses and add to bad decisions, but Mr. Duarte is obviously still in a state of denial when he talks about not considering himself a drug addict, not interested in [in-]patient treatment--oh, wait. He is interested in [in-]patient treatment. He is not interested in CRC. He is denying culpability to the probation officer with regard to this burglary. And it’s just pretty typical of the pattern of people who have decided that whatever they do that hurts others, they are going to find a way to get out of it or try to avoid personal responsibility. And it’s unfortunate Mr. Duarte appears to be still engaging in that type of conduct. I am not saying Mr. Duarte is a bad person. I am saying he has made bad choices, and he is not impressing the Court that he is learning any lessons from the past. And, quite frankly, I don’t see any reason to find that there is a circumstance in mitigation based on everything I've heard.
“The Court is going to make the following findings: I find no circumstances in mitigation.
“The three circumstances in aggravation are, one, the Defendant's prior convictions as an adult are numerous; two, the Defendant was on parole when the crime was committed; and, three, the Defendant’s prior performance on misdemeanor and felony probation were unsatisfactory in that he continued to reoffend.”
DISCUSSION
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority of 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.) Blakely 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. [Citations.]” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the court held that, under California’s determinate sentencing scheme, the upper term can only be imposed if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, ___ U.S. ____ [127 S.Ct. 856].)
Blakely describes three types of facts that a trial judge can properly use to impose an aggravated sentence: (a) “ ‘the fact of a prior conviction’ ” (Blakely, supra, 542 U.S. at p. 301); (b) “facts reflected in the jury verdict” (id. at p. 303, italics omitted); and (c) facts “admitted by the defendant” (ibid., italics omitted). Here, the court found three aggravating circumstances--Duarte’s parole status when he committed the instant offenses, his unsatisfactory performance on probation, and the numerosity of his prior convictions--and its findings are supported by the record. Numerosity of prior convictions clearly comes under the prior-conviction exception to Blakely. Further, parole status when Duarte committed the underlying offense and prior unsatisfactory performance on probation are so closely related to the underlying convictions that resulted in the probationary or parole term that they come within the prior-conviction exception to Blakely, Apprendi, and Cunningham.
Moreover, it is settled that only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Here, the trial court relied on three recidivist factors to impose the aggravated term as permitted by Blakely and Cunningham and it did not find any mitigating circumstances. Accordingly, we reject Duarte’s contention that the court committed Blakely error.
Duarte contends that in imposing the aggravated term the court relied on the aggravating factors mentioned above and on his continuing pattern of criminal behavior involving drugs, assaultive conduct, and weapons, and that Duarte was an addict who was in a state of denial and had refused treatment. Thus, according to Duarte, the court erred by its reliance on factors other than the fact of a prior conviction to impose the aggravated term on count 1 and that the error requires a reduction of his aggravated term to the middle term. We disagree.
Although the court mentioned Duarte’s continuing pattern of criminal behavior and addiction in its introductory comments, it is clear from the court’s comments quoted above that it did not rely on these two additional circumstances to impose the aggravated term. Additionally, as discussed above the court properly relied on Duarte’s parole status when he committed the underlying offenses, his unsatisfactory performance on probation, and the numerosity of his prior convictions to impose the aggravated term. Further, as noted above, only a single aggravating factor is required to impose the upper term. (People v. Osband, supra, 13 Cal.4th at p. 728.) Here, the trial court relied on three valid recidivist factors to impose the aggravated term as permitted by Blakely and Cunningham and it did not find any mitigating circumstances. Thus, even if we assume error under Cunningham based on the trial court’s reference to the two additional circumstances cited by Duarte, the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. (Washington v. Recuenco (2006) __ U.S. __ [126 S.Ct. 2546].)
DISPOSITION
The judgment is affirmed.