Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06SF0137, Gary S. Paer, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Martin Guadarrama of one count of second degree robbery (Pen. Code, § 211) and one count of street terrorism (§ 186.22, subd. (a)). The jury further found it to be true that defendant personally used a deadly weapon (a knife) during the commission of the robbery (§ 12022, subd. (b)(1)), and committed the robbery offense for the benefit of, at the direction of, or in association with Varrio Viejo, a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code.
On October 25, 2007, the court sentenced defendant to eight years and eight months in state prison. Defendant’s sentence consisted of a five-year term for the robbery conviction (§ 213, subd. (a)(2)); a one-year enhancement for the use of a knife during the robbery (§ 12022, subd. (b)(1)); a two-year enhancement for committing the robbery offense while “released from custody on a primary offense” (§ 12022.1, subd. (b)); and an eight-month term for the street terrorism offense (§ 186.22, subd. (a)). Defendant appeals his sentence, claiming the court violated his constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. Specifically, defendant claims the court’s selection of the upper-term sentence for the robbery count (five years) was based on improper judicial finding of facts at the sentencing hearing. We reject this challenge.
The court opted to strike the section 186.22, subdivision (b)(1), enhancement.
FACTS
Defendant’s conviction in this case arose out of an incident in February 2006 in which four individuals, including defendant, accosted a student on his way home from school. Defendant advised the student that he was a gang member and that he had a knife. The student complied with defendant’s request to relinquish his cell phone, I-pod, and backpack. Defendant and his companions were apprehended by the police shortly after the robbery occurred. It took the jury less than two hours to return guilty verdicts on both charged counts, and “true” findings on both charged enhancements.
The court based its selection of the five-year upper term robbery sentence on defendant’s “prior juvenile record, his prior contacts with the [criminal justice] system, the fact that his crimes seemed to be increasing in the degree of seriousness, [his] active participa[tion] in this crime, and [the fact that] this crime occurred very [soon after] his last felony arrest in August of ’05.”
DISCUSSION
“Robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years.” (§ 213, subd. (a)(2).) As noted above, the court specified reasons for its selection of the upper term (juvenile record, adult criminal record, increasing seriousness of crimes, active participation in the robbery in this case, and temporal proximity of this crime with last felony arrest). The only issue on appeal is whether defendant’s constitutional right to a jury trial was violated by the court’s selection of a five-year sentence based on its findings at the sentencing hearing.
Apprendi held that “[o]ther 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.” (Apprendi, supra, 530 U.S. at p. 490.) “[T]he ‘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.” (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely).)
In Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the United States Supreme Court applied Apprendi to California’s determinate sentencing law, including the version of section 1170, subdivision (b), in effect at the time of Cunningham. (See Stats. 2004, ch. 747, § 1 [“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime”].) Cunningham concluded that the middle term specified in California penal statutes represented the statutory maximum under Apprendi, supra, 530 U.S. 466. (Cunningham, supra, 549 U.S. at p. 293.) Thus, under the statutory regime in place at the time of Cunningham, any upward departure from the mid-term sentence must be based on facts found in accordance with Apprendi. (Ibid.)
The Legislature responded to Cunningham by amending section 1170. As amended, section 1170 now provides: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . .” (§ 1170, subd. (b).) This version of section 1170 became effective on March 30, 2007, seven months before defendant was sentenced. (People v. Wilson (2008) 164 Cal.App.4th 988, 992; Stats. 2007, ch. 3, § 2.)
Cunningham invited the Legislature to take this precise action: “As to the adjustment of California’s sentencing system in light of our decision, ‘[t]he ball . . . lies in [California’s] court.’ [Citations.] We note that several States have modified their systems . . . to retain determinate sentencing. . . . Other States have chosen to permit judges genuinely ‘to exercise broad discretion . . . within a statutory range,’ which, ‘everyone agrees,’ encounters no Sixth Amendment shoal.” (Cunningham, supra, 549 U.S. at pp. 293-294.)
Thus, in the first instance, defendant’s Sixth Amendment right to jury trial was not violated because the California sentencing scheme has been changed to comply with Cunningham. Courts now have discretion to select the low, middle, or high term regardless of the existence of particular aggravating or mitigating factors. The court here properly exercised its discretion by sentencing defendant for second degree robbery within the range provided by section 213, subdivision (a)(2), and noting its reasons for selecting defendant’s sentence on the record. (See People v. Wilson, supra, 164 Cal.App.4th 988, 992 [affirming upper-term sentence imposed by court under amended statutory regime].)
Secondarily, even if the statute had not been amended, defendant’s sentence would not violate Cunningham. Several of the five factors mentioned by the court in rendering its sentence relate to defendant’s prior criminal convictions. “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, 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.’” (People v. Black (2007) 41 Cal.4th 799, 813.) The existence of defendant’s prior convictions and their increasing seriousness, as found by the court, made him eligible for the maximum five-year sentence, even under the prior version of section 1170, subdivision (b), and Cunningham, supra, 549 U.S. 270. (See Cal. Rules of Court, rule 4.421(b)(2).)
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.