Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. SC194127
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On March 2, 2006, while he was on parole, Bryon Hood pleaded guilty to the felony offense of possession of cocaine base for sale. The imposition of sentence was suspended, and the court placed Hood on three years formal probation, with the understanding that Hood was to comply with both probation and parole obligations. About seven months later, on October 18, 2006, the district attorney filed a motion to revoke probation on the grounds of a new arrest for transporting or selling narcotics and obstructing and resisting arrest. After a contested hearing, the court revoked probation and imposed the upper term of five years on the possession offense.
On appeal, Hood argues the imposition of the upper term violates his rights enunciated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham). In Cunningham, the United States Supreme Court held that because the middle term under the former determinate sentencing law (DSL) was the relevant statutory maximum term, and the trial judge was assigned the “sole authority to find facts permitting the imposition of an upper term sentence, the system violate[d] [a defendant’s] Sixth Amendment” right to a jury trial. (Id. at 127 S.Ct. at p. 870.) After Cunningham, the United States Supreme Court vacated our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) and remanded for further consideration in light of Cunningham. (Black v. California (2007) __ U.S. __ [127 S.Ct. 1210].) While this appeal was pending, our Supreme Court issued its decision on remand in People v. Black (2007)41 Cal.4th 799 (Black II). Because that decision resolves Hood’s appellate challenge adverse to him and is binding on this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we affirm.
At the time of Hood’s sentencing, former Penal Code section 1170, subdivision (b) provided, in relevant part, that the “court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” On March 30, 2007, the Legislature amended certain provisions of the sentencing law “to respond to” Cunningham, supra, 127 S.Ct. 856, and “to maintain stability in California’s criminal justice system while the criminal justice and sentencing structures in California sentencing are being reviewed.” (Stats. 2007, ch. 3, § 1.) Section 1170, subdivision (b), now provides, in relevant part, that the “choice of the appropriate term shall rest within the sound discretion of the court.” (Stats. 2007, ch. 3, § 2.)
Before imposing sentence, the court considered two probation reports, one which had been prepared before Hood was placed on probation, and a supplemental report prepared after the district attorney filed the motion to revoke probation. The court noted the following three aggravating factors: (1) Hood’s prior convictions as an adult were “numerous and of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2) ), (2) he was on parole when he committed the offense for which he was placed on probation (rule 4.421(b)(4)), and (3) he had been returned to parole at least three times, and his performance on parole was unsatisfactory (rule 4.421(b)(5)). The court also considered in mitigation that Hood had “voluntarily acknowledged wrongdoing . . . at an early stage of the criminal process” by pleading guilty to the offense for which he was placed on probation (rule 4.423(b)(3)). The court imposed the upper term after determining that the aggravating circumstances outweighed the mitigating circumstance.
“In response to the Legislature’s amendment of the DSL, the Judicial Council amended the sentencing rules effective May 23, 2007. References to the California Rules of Court are to the rules as they read prior to those amendments.” (People v. Black, supra, 41 Cal.4th at p. 808, fn. 2.)
Hood argues that all of the aggravating factors relied upon by the trial court were required to be decided by a jury or admitted by him because none of the factors involved the simple fact of a prior conviction. However, the Black II court rejected that argument as “unsound.” (Black II, supra, 41 Cal.4th at p. 814.) “[I]mposition 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.)
The parties briefed the issue of whether Hood’s appellate challenge to his sentence was forfeited because his counsel did not raise an objection below. However, in a July 31, 2007, letter to this court, respondent withdrew its forfeiture argument. It correctly acknowledged that our Supreme Court’s decision in Black I was controlling authority at the time of Hood’s sentencing. Consequently, Hood did not forfeit his sentencing claim because of a failure to raise it at sentencing. “An objection in the trial court is not required if it would have been futile. [Citations.] . . . Had [Hood] requested a jury trial on aggravating circumstances, that request clearly would have been futile because the trial court would have been required to follow . . . Black I and deny the request.” (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
In this case, the trial court relied on at least one aggravating circumstance that entitled the court to impose the upper term. California Rules of Court, rule 4.421(b)(4) specified as an aggravating factor that “defendant was on probation or parole when the crime was committed.” Hood concedes that at the revocation hearing, he admitted he was on parole at the time he committed the drug possession offense for which he was placed on probation. Because at least one aggravating circumstance was established by means that independently satisfied the requirements of the Sixth Amendment and rendered him eligible for an upper term, Hood “was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence.” (Black II, supra, 41 Cal.4th at p. 820.) Accordingly, there is no reason to modify the sentence or remand for resentencing, as requested by Hood.
In light of our determination, we need not address Hood’s other arguments, which have for the most part been addressed and rejected by the Supreme Court in Black II, supra, 41 Cal.4th at pp. 818-820.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.