Opinion
A117840
4-22-2008
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EDWARD ESTRADA, Defendant and Appellant.
NOT TO BE PUBLISHED
This case raises solely a sentencing issue. Defendant Michael Estrada contends his four-year sentence violates Cunningham v. California (2007) 549 U.S. 270 because the trial court selected the aggravated term on the basis of facts that were neither admitted nor found true by a jury beyond a reasonable doubt. We find no error and affirm.
BACKGROUND
A jury convicted defendant of discharge of a firearm with gross negligence and possession of a firearm by a convicted felon. A prior prison term allegation was found true.
On May 7, 2007, the court sentenced defendant to an aggregate term of four years in prison, comprised of an aggravated three-year term on the negligent discharge count, a concurrent two-year term on the felon in possession count, and one year for the prior prison term. The court explained: "On Count 1, the [Penal Code section] 246.3, the negligent discharge of a firearm, the Court is imposing the high term. The Court is doing that because within the meaning of [California Rules of Court, rule] 4.421(a)(1), the crime involved threat of great bodily harm, and a stray bullet could have injured or killed somebody. Pursuant to subsection number (2), same section, the defendants prior convictions are numerous, and Ive got a copy of his rap sheet attached to the probation report. The defendant was on parole when he committed the instant offense, and his prior performance on probation has been unsatisfactory. So Im imposing the high term of three years."
Defendant timely appealed.
DISCUSSION
In Cunningham, the high court concluded that Californias determinate sentencing law violates the Sixth Amendment because it "allocates to judges sole authority to find facts permitting the imposition of an upper term sentence." (Cunningham v. California, supra, 127 S.Ct. at p. 870.) In reliance on Cunningham, defendant contends the trial courts imposition of the upper term violated his rights under the Fifth, Sixth and Fourteenth Amendments of the federal Constitution. His contention fails under People v. Black (2007) 41 Cal.4th 799, and, although defendant raises a number of challenges to the reasoning in Black, this court is bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In Black our Supreme 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. (Blakely, supra, 542 U.S. at p. 309.)" (People v. Black, supra, 41 Cal.4th at pp. 812-813.) Accordingly, the court concluded that "so long as 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 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. " (Ibid.) Noting that "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term" under Californias determinate sentencing law, the court therefore 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. (Ibid.)
Applying its stated rule to the facts in Black, our Supreme Court noted the high court "consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction [,] [citations] [and that] `[r]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. " (People v. Black, supra, 41 Cal.4th at p. 818.) On that basis, the court reasoned defendants criminal history alone rendered him eligible for the upper term sentence. (Ibid.)
The Black rule operates the same way in this case. Defendants numerous prior convictions rendered him eligible for the aggravated term and imposition of that term did not violate his constitutional rights.
While defendant concedes that three of the four aggravating elements found by the court, including numerous prior convictions, are "arguably `recidivist-related, " he claims they fall outside of the recidivism exception because they go beyond the mere fact of a prior conviction. Black expressly rejected that proposition. (People v. Black, supra, 41 Cal.4th at pp. 817-820.) "The determinations whether a defendant has suffered prior convictions, and whether those convictions are `numerous or of increasing seriousness [citation] require consideration of only the number, dates, and offenses of the prior convictions alleged. . . . 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. " (Id. at pp. 819-820.) There was no sentencing error.
DISPOSITION
The judgment is affirmed.
We concur:
Pollak, Acting P.J.
Jenkins, J.
Because the numerous prior convictions finding alone is sufficient to support the high term, we do not address defendants further contention that the court improperly relied on a finding that the crime involved the threat of great bodily harm.