Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Richard R. Romero, Judge, Los Angeles County Super. Ct. No. NA060940
Matthew G. Kaestner 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, Marc E. Turchin, Chung L. Mar, Robert David Breton and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Leonel Hernandez appeals from a judgment entered upon his conviction by jury of assault (Pen. Code, § 245, subd. (a)(1)). The jury also found to be true the allegation that appellant personally inflicted great bodily injury during the assault within the meaning of section 12022.7, subdivision (a). The trial court sentenced appellant to an aggregate sentence of seven years; the upper term of four years for the assault and a consecutive term of three years pursuant to section 12022.7, subdivision (a). Appellant contends that imposition of the upper term sentence violated his right to a determination by a jury beyond a reasonable doubt of facts necessary to increase his sentence beyond the statutory maximum, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
All further statutory references are to the Penal Code unless otherwise indicated.
We filed our original opinion in this matter on September 2, 2005. On February 20, 2007, the United States Supreme Court having granted appellant’s petition for writ of certiorari, vacated the judgment in this matter and remanded it to this court with directions to reconsider this matter in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
By order of August 6, 2007, we authorized the parties to file supplemental briefs for further consideration of this matter in light of Cunningham and the California Supreme Court’s decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On September 25, 2007, appellant filed his supplemental brief, and, on October 9, 2007, respondent filed its responding brief.
Having reconsidered the matter in light of the above-mentioned recent authorities, we now affirm.
PROCEDURAL AND FACTUAL BACKGROUND
On January 30, 2004, at 1:45 a.m., Blanca Ochoa and her son, Andy Lepe (Andy), and daughter, Gloria Lepe (Gloria), were at the Mariposa Restaurant and Nightclub, in Long Beach, near closing time. As Ochoa was about to leave, a man slapped her behind. She turned to him and said, “Don’t be slapping my ass.” A man she identified as appellant walked up to her and said, “I’m a straight-out gangster,” and hit her in the face with something in his hand that she could not identify. It may have been a beer bottle.
Respondent states that Ochoa was “smashed . . . in the face with a beer bottle.” But no witness directly testified that they saw a beer bottle in appellant’s hand. Both Ochoa and her son testified that they did not see what the object was. But the prosecutor later asked Ochoa, “Did you have any problem seeing the person that hit you with the bottle?,” to which Ochoa responded, “No, I had no problem. I had my other eye available.” A similar question, assuming that the object was a beer bottle, was also asked of Detective Delfin without objection. Thus, the only evidence that the object was a beer bottle is derived from questions that assumed facts not in evidence.
A security guard asked Ochoa if she was alright, to which she responded that she was not, pointing to appellant as the man who hit her. Andy asked Ochoa who hit her, and she again pointed to appellant. Andy approached appellant, and, as he did, a security guard grabbed Andy and scuffled with him. Gloria began arguing with the security guards. While the security guards were preoccupied with Andy and Gloria, appellant ducked behind a group of friends, got into his car and left. A female patron who witnessed the assault wrote down appellant’s license plate number as he left and gave it to Ochoa.
Ochoa and her son and daughter left the establishment and headed home. On the way, they telephoned the police who were waiting to take a report at their home. Ochoa gave them the information including the license number she had been given by the other patron. Ochoa then went to Long Beach Hospital; her face was cut and bleeding and she suffered a “blowout” fracture around her left eye. As a result of the injury, she suffered headaches and double vision, deep bruising from her left eye to her right eye, and was still suffering double vision at the time of trial. She was going to require surgery for the double vision.
Long Beach Police Detective Rick Delfin investigated the assault and determined that the license plate number he had received belonged to a vehicle that had been involved in an accident. At the time of the accident, appellant was a passenger in the car. On checking, the detective determined that appellant’s height and weight matched the description of Ochoa’s attacker. Detective Delfin prepared a photographic six-pack that included a photograph of appellant. Ochoa and her son identified appellant as the attacker from the photographic display. The detective also searched appellant’s home and located a shirt that Ochoa and her son had described the assailant as wearing, and which they subsequently identified as such.
DISCUSSION
The jury found appellant guilty of assault with a deadly weapon and of inflicting great bodily injury during its commission. The probation report recommended state prison. It concluded that there were no mitigating factors and that the aggravating circumstances included those surrounding the assault, appellant’s prior escalating offenses, and a pending burglary charge committed while appellant was on bail for this matter. The report also indicated that he was a member of a street gang and had committed grand theft firearm as a juvenile.
At appellant’s sentencing hearing on August 25, 2004, the trial court evaluated the aggravating and mitigating factors as follows: “The court does find circumstances in aggravation that the crime involved great violence and bodily harm, disclosing a high degree of viciousness. The defendant was armed at the time. This is violent conduct indicating a serious danger to society. There was no provocation. I do find factually that Ms. Ochoa did nothing to provoke the defendant. The defendant does have a prior record which does show increasing seriousness of criminal conduct. The lack of remorse is not an aggravating circumstance since he denies the crime. There are no circumstances in mitigation. Since the crimes are increasing in seriousness showing grave danger to society, probation is not appropriate, and I rely on that circumstance for denying probation. The other circumstances I use to determine the appropriate term, and the circumstances in aggravation greatly outweigh the nonexisting mitigating circumstances.” ~(RT 186)~ It concluded that “tak[ing] into account the impact of this sentence on [appellant’s] spouse and children, but balancing that against the danger to society, the high term is appropriate.” ~(RT 187)~ The trial court therefore sentenced appellant to an upper term of four years on the assault conviction and to a consecutive three years for the great bodily injury enhancement.
Appellant contends that imposition of the upper term sentence violated his right to a determination by a jury beyond a reasonable doubt of facts necessary to increase his sentence beyond the statutory maximum, as set forth in Blakely. He argues that the statutory maximum that can be imposed is the middle term absent factors in aggravation and that those factors here were determined by the trial court and not the jury.
Respondent contends that appellant forfeited this contention by failing to raise it in the trial court by objecting to the upper term sentence on this ground. We agree. Appellant was sentenced two months after rendition of Blakely (June 24, 2004) and before our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) (June 20, 2005). A defendant could foresee that California’s upper term sentencing scheme might violate the right to a jury trial and that counsel was therefore required to raise such a claim in the trial court to avoid forfeiting it on appeal. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) Ourconclusion was reinforced in Black II which statedthat while Apprendi v. New Jersey (2000) 530 U.S. 466was not understood to apply to aggravating circumstances or other sentencing decisions, Blakely “‘worked a sea change in the body of sentencing law.’” (Black II, supra, 41 Cal.4th at pp. 810-812.) At the time appellant was sentenced, competent and knowledgeable trial counsel would have been aware of Blakely, could have reasonably foreseen its application to upper term sentencing and would have asserted a proper objection to the trial court’s imposition of the upper term.
Even if the claim was not waived, we would nonetheless reject it on the merits. For the reasons set forth in Black II, we find no constitutional violation in the trial court’s imposition of the upper term. In Blakely, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that 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” must be determined by a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 303). The high court recently made clear that “[i]n accord with Blakely . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 868].) In Cunningham, contrary to the California Supreme Court’s conclusion in Black I, the United States Supreme Court held that California’s determinate sentencing law was unconstitutional to the extent that it authorized the trial court to impose an upper term sentence based on facts that were found by the court rather than a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 871].)
Following Cunningham, the California Supreme Court in Black II reasoned that “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 fact finding 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.” (Black II, supra, 41 Cal.4th at p. 812.) “[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.’” (Black II, supra, at p. 813.) Citing federal circuit decisions stating that the prior conviction exception may be found using the preponderance of the evidence standard, Black II also concluded that “[t]he high court never has suggested that the requirement of proof beyond a reasonable doubt could be severed from the right to jury trial for purposes of applying the [prior convictions exception].” (Black II, supra, at p. 820, fn. 9.)
“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.” (Black II, supra, 41 Cal.4th at p. 818; Blakely, supra, 542 U.S. at pp. 301, 303.) This exception is not to be read too narrowly. (Black II, supra, at p. 819.) The fact of a prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.)
Here, the trial court explicitly found that appellant’s criminal history reflected crimes of increasing seriousness. Appellant argues in his supplemental letter brief that the trial court did not rely on that finding in imposing the upper term, but relied on it only in denying probation. While this contention appears correct, for purposes of our analysis, it makes no difference. Our Supreme Court has stated that, “Under established authority, the same fact may be used both to deny probation and to support imposition of an upper term sentence.” (Black II, supra, 41 Cal.4th at p 817.) Hence, the use of appellant’s criminal history factor to deny probation does not prevent it from being used to impose the upper term. Although the trial court did not specifically indicate that it was a factor on which it relied in imposing the upper term, nonetheless this single finding made appellant eligible for the upper term and the trial court was free to consider other factors in imposing an upper term sentence. (See Black II, supra, at pp. 819-820.)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.