Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Philip S. Gutierrez, Judge. Los Angeles County Super. Ct. No. KA069075
Jonathan B. Steiner and Ronnie Duberstein, under appointments 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, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Susan Sullivan Pithey and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
Jerry Lee Espinoza appealed from the judgment entered following a jury trial in which he was convicted of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and resisting, obstructing or delaying a peace officer, a misdemeanor (Pen. Code, § 148, subd. (a)(1)). Following a court trial he was found to have previously suffered a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)) and served two separate prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for a total of seven years. He contended he was improperly sentenced to the upper term in violation of his federal constitutional right to a jury trial and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We issued an opinion on April 25, 2006 affirming the judgment.
Appellant, thereafter, filed a petition for writ of certiorari in the United States Supreme Court. While the petition was pending, that court decided Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and later granted appellant’s certiorari petition, vacated our judgment, and remanded the matter to us for further consideration in light of Cunningham. We recalled the remittitur, vacated the opinion, and granted the parties leave to file supplemental briefs addressing the effect, if any, of Cunningham on appellant’s sentence. While the case was pending, the California Supreme Court considered Cunningham issues in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. We afforded the parties additional time to address those opinions. After review of Cunningham, Black, Sandoval, and the parties’ supplemental briefs, we conclude appellant’s sentence did not violate his right to a jury trial and was not improper under Blakely.
FACTUAL AND PROCEDURAL SUMMARY
On December 20, 2004, Police Officer Wayne Worley was driving in a marked patrol car when he attempted to stop a Honda Accord vehicle with an expired registration. Appellant was the driver of the vehicle and he at first pulled to the side of the road and slowed down but then drove back into the lane of traffic and continued for about a half block. Thereafter, the car stopped and the occupants exited the vehicle. Appellant dropped a screwdriver and ran across the street. Officer Worley chased appellant for about a minute before losing sight of him.
Rick Mora was replacing a gas line in an alley behind a supermarket when appellant jumped the wall, walked over to him and asked if he could have his hard hat and a drink of water. When appellant asked for Mr. Mora’s orange work vest, Mr. Mora told him “no,” but there was one in his truck. Appellant put the orange vest on and walked into a nearby building. Mr. Mora later identified appellant for the police.
The Honda vehicle belonged to Felipe Valdes and Mr. Valdes had not given appellant permission to drive the car. When it was returned to Mr. Valdes, the ignition switch was broken.
Appellant was sentenced to the upper term of three years for the Vehicle Code violation, which was doubled pursuant to the Three Strikes law. The court stated it selected the upper term pursuant to the Rules of Court, specifically that appellant was on parole at the time of the current offenses. An additional year was imposed for the prior prison term enhancement found true pursuant to Penal Code section 667.5, subdivision (b).
DISCUSSION
In Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court concluded California’s determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and the Sixth Amendment to the United States Constitution. It also, however, reiterated that the fact of a prior conviction need not be submitted to a jury. (See Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856]; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.]” People v. Black, supra, 41 Cal.4th at p. 818.) The prior conviction exception to the Apprendi rule has been construed broadly to apply to factors based on a defendant’s recidivism. (See People v. Black, supra, 41 Cal.4th at p. 819; People v. McGee (2006) 38 Cal.4th 682, 704; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.) Here, the trial court’s reliance on appellant’s criminal history, finding that appellant was on parole at the time of the offense, permitted the upper term sentence. Use of that factor did not violate his right to a trial by jury or proof of the fact beyond a reasonable doubt. (See People Yim (2007) 152 Cal.App.4th 366, 371.) “[T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements.” (People v. Sandoval, supra, 41Cal.4th at p. 838; see also People v. Black, supra, 41 Cal.4th at p. 813.)
Moreover, error if any here was harmless. At trial, the prosecutor submitted a certified prior packet from the Department of Corrections containing abstracts of judgment from two separate cases showing appellant had been convicted in December 2001 of possession of methamphetamine for sale and in August 1998 of second degree robbery. Additionally, the packet included the chronological history reflecting appellant’s period of confinement. It was undisputed that at the time of the offense appellant was on parole. If the question of whether appellant was on parole at the time of the offense had been submitted to the jury, the jury would have found this fact true beyond a reasonable doubt. (See People v. Sandoval, supra, 41 Cal.4th 825, 838-839.)
DISPOSITION
The judgment is affirmed.
We concur
EPSTEIN, P.J., MANELLA, J.