From Casetext: Smarter Legal Research

People v. Hernandez

California Court of Appeals, Fourth District, Third Division
Mar 20, 2008
No. G038393 (Cal. Ct. App. Mar. 20, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ARTURO ANDRADE HERNANDEZ, Defendant and Appellant. G038393 California Court of Appeal, Fourth District, Third Division March 20, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06CF0396 Robert R. Fitzgerald, Judge.

Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

IKOLA, J.

After a jury convicted defendant Arturo Andrade Hernandez of pimping (Pen. Code, § 266h, subd. (a)), the court sentenced him to the upper term of six years based on the court’s finding defendant’s prior convictions were of increasing seriousness under California Rules of Court, rule 4.421(b)(2). On appeal defendant contends the court’s imposition of the upper term violated his right to a jury trial, contending People v. Black (2007) 41 Cal.4th 799 (Black II) was wrongly decided. We affirm.

FACTS

The only facts pertinent to the sentencing issue at hand are the prior convictions suffered by defendant. No prior convictions were alleged in the information charging defendant with pimping. The probation report, on which the court expressly relied, listed the following prior convictions: In February 2000, defendant pleaded guilty to a misdemeanor violation of Vehicle Code section 14601.2, subdivision (a) (driving privilege suspended or revoked for driving under the influence of alcoholic beverage or drug) and violating Vehicle Code section 22107 (turning movements and required signals). In September 2003, he pleaded guilty to violating Vehicle Code section 14601.1, subdivision (a) (driving when privilege revoked or suspended for other reasons), and Vehicle Code section 16028, subdivision (a) (proof of financial responsibility to be provided upon demand of peace officer), Vehicle code section 22108 (duration of signal), and Vehicle Code section 4000, subdivision (a) (registration required). In January 2005, he pleaded guilty to a misdemeanor violation of Penal Code section 422 (criminal threats). In May 2005, he pleaded guilty to a misdemeanor violation of Penal Code section 594, subdivisions (a) and (b)(2)(A) (vandalism).

DISCUSSION

Defendant’s Sixth Amendment Right to a Jury Trial Was Not Violated

Relying on Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), defendant contends the court violated his constitutional right to a jury trial under the Sixth and Fourteenth Amendments by sentencing him to the upper term for pimping based on a factual determination made by the court. Here, the court selected the upper term after finding defendant’s prior convictions were “of increasing seriousness” under California Rules of Court, rule 4.421(b)(2). Under rule 4.421(b)(2), for purposes of determinate sentencing, a court may consider as an aggravating circumstance that a defendant’s “prior convictions as an adult . . . are numerous or of increasing seriousness.”

In Cunningham, supra,549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court held California’s determinate sentencing law (DSL) violated the Sixth Amendment because it “authorize[d] the judge, not the jury, to find the facts permitting an upper term sentence” and to find those facts by a preponderance of the evidence instead of beyond a reasonable doubt. (Id. at pp. 868, 871.) Thus, “the DSL violate[d the] bright-line rule [articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490]: Except for 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.’” (Cunningham, at p. 868.)

In Black II, supra, 41 Cal.4th 799, our Supreme Court 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.” (Id. at p. 816.) Black II noted 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.” (Id. at p. 818.) Black II held “the ‘prior conviction’ exception” “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) Significantly to the case before us, Black II held the aggravating circumstance that the defendant’s prior convictions were numerous and of increasing seriousness under California Rules of Court, rule 4.421(b)(2) could properly be found by the judge under the “‘prior conviction’ exception.” (Black II, at p. 819.) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are “numerous or of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. “This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’” (Black II at p. 820.) Accordingly, the Black II defendant’s “criminal history” constituted an “aggravating circumstance[] that independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term.” (Ibid.)

We are bound by the decision of the California Supreme Court in Black II, supra, 41 Cal.4th 799. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The court’s imposition of the upper term for pimping did not violate defendant’s constitutional right to a jury trial.

DISPOSITION

The judgment is affirmed.

WE CONCUR: SILLS, P. J., RYLAARSDAM, J.


Summaries of

People v. Hernandez

California Court of Appeals, Fourth District, Third Division
Mar 20, 2008
No. G038393 (Cal. Ct. App. Mar. 20, 2008)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ARTURO ANDRADE HERNANDEZ…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 20, 2008

Citations

No. G038393 (Cal. Ct. App. Mar. 20, 2008)