Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. PA052913
Sanjay T. Kumar, Judge. Affirmed.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Susan Sullivan Pithey and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Sergio Gutierrez was convicted, following a jury trial, of one count of carjacking in violation of Penal Code section 215, subdivision (a). The jury found true the allegation that appellant personally used a knife in the commission of the crime within the meaning of section 12022, subdivision (b). The trial court sentenced appellant to the upper term of nine years in state prison for the carjacking conviction, plus the upper term of three years for the knife use enhancement.
Appellant appeals from the judgment of conviction, contending that the imposition of the upper term violated his Sixth Amendment right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296. While appellant's case was pending on appeal, the United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] and the California Supreme Court issued its opinions in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. At our request, the parties submitted letter briefs addressing the effect of People v. Black, supra, and People v. Sandoval, supra. Appellant maintains his contention that his sentence violates the Sixth Amendment. We see no violation of appellant's Sixth Amendment rights. We affirm the judgment of conviction.
Facts
On September 3, 2005, appellant approached Abel Castillo while he was parked at a gas station in Los Angeles, put a knife to his neck and ordered him to get out of his car and hand over his cell phone. Castillo complied. Appellant drove off in Castillo's car. Shortly thereafter, appellant drove through a police traffic closure. Police pursued him. Appellant crashed the car, then fled on foot. He was apprehended by police. The next day, Castillo identified appellant from a photographic line-up as the man who took his car and cell phone.
Discussion
In Cunningham, supra, the U.S. Supreme Court held that California's procedure for selecting an upper term violated a defendant's Sixth and Fourteenth Amendment rights to jury trial because it gave the judge, not the jury, the authority to find facts that exposed a defendant to an elevated upper term sentence. The court explained that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].)
The California Supreme Court has explained the application of Cunningham to California's sentencing law: "Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California's current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court's exercise of its discretion in selecting the appropriate term from among those authorized for the defendant's offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows 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." (People v. Black, supra, 41 Cal.4th at pp. 815-816.)
The Court has also explained that the Almendarez-Torres exception for a prior conviction exception should not be read too narrowly. This exception includes "not only the fact that a prior conviction occurred, but also other related issues that may be determined from examining the records of the prior convictions." (People v. Black, supra, 41 Cal.4th at p. 819.) Examples of related issues which fall within the exception are whether the convictions are numerous or of increasing seriousness. (Id. at pp. 819-820.)
Almendarez-Torres v. United States (1998) 523 U.S. 224.
Appellant contends that the court in Black reads the prior conviction exception too broadly and so is inconsistent with Apprendi v. New Jersey (2000) 530 U.S. 466, which forms the basis for the prior conviction exception noted in Cunningham, supra. We do not agree, but more importantly, we are bound by the decision of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The holding of Apprendi is based on Almendarez-Torres, supra.
Here, the trial court found four aggravating factors and no mitigating factors. Three of the factors involved appellant's criminal history, specifically the facts that appellant had served a prior prison term, his performance on parole was not satisfactory and he was on probation at the time of the current offense.
The use of the prior prison term was permissible under Cunningham. (People v. Thomas (2001) 91 Cal.App.4th 212, 220-223 [court's finding that defendant served prior prison term falls within Apprendi/Almendarez-Torres exception].) This rendered appellant constitutionally eligible for the upper term.
Appellant contends that a separate constitutionally valid aggravating factor was required to sentence him to the upper term on the knife enhancement. Assuming for the sake of argument that appellant is correct, the fact that appellant was on probation would satisfy any such requirement. (See People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) We agree with the reasoning of Yim. Further, even assuming for the sake of argument that this factor required a jury finding, we would find any error harmless. We conclude beyond a reasonable doubt, that "the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true" the factor that appellant was on probation at the time of the current offense, had it been submitted to the jury. (People v. Sandoval, supra, 41 Cal.4th at p. 839.)
We recognize that the issue of whether probation or parole status and performance falls under the prior conviction exception is before the California Supreme Court. (People v. Towne, review granted July 14, 2004, S125677.)
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.