Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD 187343, SCD185915, Melinda J. Lasater, Judge.
McDONALD, J.
In January 2005, in case No. SCD 185915, a jury convicted Adrian Esquera of automobile theft (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d), and recklessly evading an officer (Veh. Code, § 2800.2, subd. (a)). In March 2006, in case No. SCD 187343, a different jury found Esquera guilty of assault with a deadly weapon (§ 245, subd. (a)(1))) and found true the serious felony allegation based on Esquera's use of a deadly weapon (§ 1192.7, subd. (c)(23)). In the latter case, Esquera admitted a prison prior enhancement. The convictions were consolidated for sentencing, and the trial court sentenced Esquera to the four-year upper term for the assault, and consecutive terms of one year for auto theft, one year for the prison prior, and eight months for evading the officer. The court also imposed an upper term on the conviction for receiving stolen property but stayed that sentence.
All statutory references are to the Penal Code unless otherwise specified.
On appeal, Esquera asserts his sentence must be reversed because imposition of the upper terms violates Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
ANALYSIS
Esquera asserts that selection of the upper term violated Cunningham because it was based on facts not found by the jury beyond a reasonable doubt. In Cunningham, the court concluded California's determinate sentencing law (DSL) violates the Sixth Amendment because it "allocates to judges sole authority to find facts permitting the imposition of an upper term sentence[.]" (Cunningham, supra, ___ U.S. at p. ___, 127 S.Ct. at p. 870.) Relying on Cunningham, Esquera contends the trial court's imposition of the upper term in this case violated his Sixth Amendment right to a jury trial.
However, the Supreme Court's decision in People v. Black (2007) 41 Cal.4th 799 (Black II) concluded a trial court may impose the upper term without offending Cunningham if the defendant "is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles." (Black II, at p. 813.) We conclude Black II controls this case and mandates affirmance of the sentence.
In Black II, the Supreme Court addressed the same issue raised by Esquera here: whether imposition of the upper term violated the defendant's right to a jury trial. The Black II court noted that in Blakely v. Washington (2004) 542 U.S. 296 , the United States Supreme Court "explicitly recognized the legitimate role of 'judicial factfinding' in indeterminate sentencing, in which the judge may 'implicitly rule on those facts he deems important to the exercise of his sentencing discretion.' [Quoting Blakely, at p. 309.]" (Black II, supra, 41 Cal.4th at pp. 812-813.) Accordingly, the Black II court concluded that "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Id. at p. 813.) The Black II court added that "[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense 'do not pertain to whether the defendant has a legal right to a lesser sentence--and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.' [Citation.]" (Ibid.)
After noting that "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term" under California's DSL, the Black II court concluded that "if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum' " for Sixth Amendment purposes. (Black II, supra, 41 Cal.4th at p. 813.) The Black II court then noted 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] [and that] 'recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.' [Citation.]" (Id. at p. 818.) On that basis, the Black II court reasoned a defendant's criminal history alone may render him or her eligible for the upper term. (Ibid.)
The Black II court, after noting the probation report reflected the defendant in Black II had convictions both numerous (three misdemeanors and two felonies) and of increasing seriousness, next addressed the defendant's argument that, even if the fact of a prior conviction may not be a jury issue, he was nevertheless entitled to a jury trial (under Cunningham) on the issues of numerosity or increasing seriousness. The Black II court, rejecting the argument, explained the defendant "reads the 'prior conviction' exception too narrowly. [Citations.] As we recognized in [People v. McGee (2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres[ v. U.S. (1998) 523 U.S. 224] exception to include 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. [Citations.] [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' (Cal. Rules of Court, rule 4.421 (b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is 'quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.' [Quoting McGee, supra, 38 Cal.4th at p. 706.]" (Black II, supra, 41 Cal.4th at pp. 819-820, fn. omitted.)
Here, the court specifically noted Esquera's prior convictions were numerous, and the probation report provides evidence to support that finding. Because Esquera's numerous convictions were alone a sufficient basis to render him eligible for the upper term, we are compelled under Black II to conclude he suffered no Sixth Amendment violation by the trial court's exercise of its discretion in selecting the upper term in his case based on facts determined by the trial court. (Black II, supra, 41 Cal.4th at p. 820.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., AARON, J.