Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA044497. Charles L. Peven, Judge.
Julie Sullwold Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Kristofer Jorstad, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
Anthony Hamilton appealed from the judgment entered following a court trial in which he was convicted of voluntary manslaughter. (Pen. Code, § 192, subd. (a).) Sentenced to the upper term of 11 years, he contended his sentence violated the Sixth Amendment to the United States Constitution under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely). On April 21, 2005, we filed our opinion reversing the sentence and remanding the matter to the trial court for further proceedings.
On July 13, 2005, a petition for review was granted by the California Supreme Court, and on September 7, 2005, the matter was transferred to this court with directions to vacate our decision and to reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238. On October 20, 2005, we issued an opinion concluding, in light of Black, we found no constitutional error in sentencing.
Appellant, thereafter, filed a petition for writ of certiorari in the United States Supreme Court. While the petition was pending, that court decided Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and later granted appellant’s certiorari petition, vacated our judgment, and remanded the matter to us for further consideration in light of Cunningham. We recalled the remittitur, vacated the opinion, and granted the parties leave to file supplemental briefs addressing the effect, if any, of Cunningham on appellant’s sentence. While the case was pending on remand, the California Supreme Court considered Cunningham issues in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. We afforded the parties additional time to address those opinions. After review of Cunningham, Black, Sandoval, and the parties’ supplemental briefs, we conclude appellant’s sentence did not violate his right to a jury trial and was not improper under Blakely.
FACTUAL AND PROCEDURAL SUMMARY
Following a jury waiver, appellant was convicted by the court of voluntary manslaughter and found sane. With reference to appellant’s sanity, the court observed it was “a very, very close case,” but while there was no question that appellant was mentally ill, he had not overcome the presumption of sanity at the time of the commission of the offense.
Before appellant killed his father, appellant had had a history of mental illness, drug abuse, and bizarre behavior. On May 22, 2003, after an altercation between appellant and his father, police officers arrived at the home of the father, whom they found dead with a suspender wrapped in a single loop around his neck. There was a hat on the victim’s chest; and under the hat and underneath the T-shirt he was wearing, there were two wedge-shaped slices of apple. A large wedge of apple had been placed in the victim’s mouth after he died. Part of the victim’s ear appeared to have been bitten off at or near the time of death and was found on the floor near the body. The cause of death was asphyxia due to ligature strangulation, and there were injuries on the victim’s body indicating he was trying to defend himself.
At sentencing, the court stated it found “one mitigating factor in that the defendant was suffering from a mental condition that significantly reduced his culpability for the crime. [¶] However, the court does find that there are aggravating circumstances here[] in that the crime certainly involved great violence, and great bodily harm, and certainly the defendant, the court does note, was on probation when he committed this offense. And the probation was for a spousal abuse offender, which was another crime of a violent nature.” The court found that the aggravating circumstances outweighed the one mitigating circumstance and selected the high term of 11 years.
DISCUSSION
Appellant contends that Blakely applies to this case and that his sentence violated the Sixth Amendment to the United States Constitution. We disagree.
In Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court concluded California’s determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and the Sixth Amendment to the United States Constitution. It also, however, reiterated that the fact of a prior conviction need not be submitted to a jury. (See Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856]; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) “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.]” People v. Black, supra, 41 Cal.4th at p. 818.) The prior conviction exception to the Apprendi rule has been construed broadly to apply to factors based on a defendant’s recidivism. (See People v. Black, supra, 41 Cal.4th at p. 819; People v. McGee (2006) 38 Cal.4th 682, 704; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.) Here, the trial court’s reliance on appellant’s recividivism, specifically that he was on probation at the time he committed the instant offense, permitted the upper term sentence. Use of that factor did not violate his right to a trial by jury or proof of the fact beyond a reasonable doubt. (See People Yim (2007) 152 Cal.App.4th 366, 371.)
“[I]f 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, supra, 41 Cal.4th at p. 813, fn. omitted.) Thus, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, 41 Cal.4th at p. 812.) Here, as the trial court relied upon a factor related to appellant’s recidivism, we need not consider whether reliance on the fact that the crime involved great violence or great bodily harm was error. “[T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements.” (People v. Sandoval, supra, (2007) 41Cal.4th 825, 838; see also People v. Black, supra, 41 Cal.4th at p. 813.)
As appellant was sentenced prior to Blakely he did not forfeit his claim of sentencing error premised upon the principles established in Blakely and Cunningham based on his counsel’s failure to object at trial. (See People v. Black, supra, 41 Cal.4th at p. 812.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J. MANELLA, J.