Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF094268A, SF095302A
RAYE, Acting P.J.
Defendant Alaren Frazier pled no contest to two counts of first degree residential burglary (Pen. Code, § 459), each in a separate case pending against him, in exchange for 12 months in county jail; a grant of probation; and dismissal of all remaining counts, a third felony complaint, and any outstanding allegations of probation violation. The court suspended imposition of sentence and granted formal probation pursuant to specified terms and conditions.
Case Nos. SF094268A and SF095302A.
The court subsequently found true an allegation that defendant violated probation and sentenced him to an aggregate term of seven years four months in state prison.
On appeal, defendant concedes that imposition of the upper term was proper under the holdings in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), but contends those cases violate both the federal Constitution and applicable United States Supreme Court precedent, including the law decided in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying offense are not at issue in this appeal.
While on probation in two prior cases, defendant broke into a home and demanded money and credit cards from the victim, an 89-year-old woman. When the victim said she had no money or cards, defendant hit her, causing her to fall to the ground. Before the victim could reach a box containing a gun and ammunition under the commode, defendant took the box and ran out of the house.
A couple of days later, police caught defendant as he fled from the driver’s side of a vehicle that had been reported stolen.
A contested hearing was held regarding defendant’s alleged violations of probation arising from the two incidents. The court found those allegations to be true. The court denied probation and, based on defendant’s prior felony and the fact that he was on probation when the offenses were committed, found that the aggravating factors outweighed those in mitigation and imposed the upper term of six years in state prison in case No. SF095302A. In case No. SF094268A, the court imposed a consecutive term of 16 months (one-third the middle term) in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
Conceding that imposition of the upper term was proper under Black II and Sandoval, and recognizing that we are bound by the decisions of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), defendant challenges Black II and Sandoval “only to preserve those issues for further federal court review.”
Applying the Sixth Amendment to the federal Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 302-304 [159 L.Ed.2d 403] (Blakely).)
Accordingly, in Cunningham, the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 166 L.Ed.2d at p. 864, overruling on this point People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].) Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt.
Applying Cunningham in Black II, this state’s highest court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.)
In deciding to impose the upper term, the trial court cited the fact that defendant had a prior felony conviction and was on probation at the time the offenses were committed.
As pointed out in Apprendi, Blakely, Cunningham, and Black II, the Sixth Amendment jury-trial guarantee does not apply to prior convictions that are used to impose greater punishment. (See, e.g., Cunningham, supra, 166 L.Ed.2d at p. 864; Black II, supra, 41 Cal.4th at pp. 818-819.) The reasons underlying the exemption of prior convictions are as follows: (1) the fact of a prior conviction “‘does not relate to the commission of the offense’” for which the defendant is being sentenced (Apprendi, supra, 530 U.S. at p. 496), and (2) “the certainty that procedural safeguards attached to any ‘fact’ of prior conviction . . . mitigate[s] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” (Apprendi, at p. 488, fn. omitted.) It follows that the exception applies not only to the fact of a prior conviction, but also to “an issue of recidivism which enhances a sentence and is unrelated to an element of a crime.” (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) Therefore, “‘the fact of a prior conviction,’ and related facts . . . may be judicially found at sentencing.” (United States v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) For instance, the trial court may determine and rely upon the defendant’s probation or parole status to impose the upper term. (Cf. United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 (Corchado) [“the ‘prior conviction’ exception extends to ‘subsidiary findings’ such as whether a defendant was under court supervision when he or she committed a subsequent crime”].)
Here, it was proper for the trial court to impose the upper term based on defendant’s prior conviction and his probationary status at the time of the crimes, both aggravating factors that did not have to be submitted to a jury. (Corchado, supra, 427 F.3d at p. 820.) Accordingly, the trial court’s reliance on those factors did not run afoul of the Sixth Amendment. Because either one of those factors, alone, renders defendant eligible for the upper term, he “was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term.” (Black II, supra, 41 Cal.4th at p. 820.)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J.