Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA071055, David M. Mintz, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
SUMMARY
In this appeal, Charles L. Jackson complains the trial court’s imposition of an upper term sentence is unconstitutional under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
In September 2003, Jackson was charged with one count each of petty theft with a prior (Pen. Code, § 666 [all undesignated statutory references are to the Penal Code]) and robbery (§ 211). In November, after receiving the necessary advisements, he pled no contest to robbery and admitted the alleged prior conviction for grand theft (§ 487). Imposition of sentence was suspended, and Jackson was placed on formal probation for a period of three years. He was also ordered to pay $200 as a restitution fine. (§ 1202.4, subd. (b).)
In June 2004, his probation officer filed a report recommending that Jackson be found in violation of probation, citing numerous arrests as well as his failures to report and to pay as directed. The trial court revoked Jackson’s probation, and a bench warrant was issued.
In May 2005, Jackson’s probation officer filed a report recommending imposition of sentence. In June, Jackson admitted violating probation, and probation was reinstated on the same terms and conditions as before.
In August, probation was revoked, and the trial court set a violation hearing for the following month. At that time, the court found Jackson in violation of probation and, in October, sentenced him to the upper term of five years on the robbery count.
In February 2006, Jackson filed an appeal seeking an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. In May, we filed an opinion affirming the judgment, and remittitur was issued in July.
In February 2007, Jackson filed a petition for writ of habeas corpus, asserting his upper term sentence violated Cunningham, supra, 549 U.S. __ [127 S.Ct. 856]. We requested a response regarded the procedure of deeming the habeas petition a motion to recall the remittitur and then reinstating the appeal. Notwithstanding the Attorney General’s opposition to proceeding in this manner, we deemed the petition as such a motion and reinstated the appeal.
DISCUSSION
At the sentencing hearing, the court stated as follows: “I have read and considered the probation and sentencing report [dated August 8, 2003 which] notes the following: Criminal history in 1995, there was a sustained petition for [§] 484[, subd.] (a). The defendant was put on home probation for five months. Later it looks like there was [another] sustained petition for [§ ] 484[, subd.] (a). Again, he was placed on home probation. Four months later in November of ’95, [Health and Safety Code section] 11357[, subd.] (b) and [§] 459. Petition was sustained for [§] 459. He went to camp. 1996, Compton, [§] 459. Petition sustained for [§] 459. He went to camp. ’96 there appears to be a [Welfare and Institutions Code §] 777 petition. That was November of ’96. March of ’97, [§] 484. Petition was sustained. Disposition unknown. 1998, [§] 459[--]three counts. Sustained. Went to camp. 1998, [§] 496, receiving. Petition sustained. Went to camp. And then there was this case.
“He has had a long juvenile history. I find the following factors in aggravation: the defendant’s prior convictions—actually not convictions, but the defendant’s sustained petitions in juvenile delinquency proceeding[s] are numerous and of increasing seriousness under California Rules of Court[, rule] 4.421(b)(2). It also appears his prior performance on probation has been unsatisfactory under subdivision (b)(5). [T]here were violations of juvenile probation that he was granted in those cases. [¶] I find no factors in mitigation. [¶] On each of those factors independently, without weighing the lack of mitigation, it’s justified imposing the upper term.”
According to Jackson, both of the trial court’s findings—that his sustained juvenile petitions are numerous and of increasing severity and that his prior performance on probation, including as a juvenile, was poor—violate Cunningham v. California (2007)549 U.S. __ [127 S.Ct. 856]; Blakely v. Washington (2004) 542 U.S. 296; and Apprendi v. New Jersey (2000) 530 U.S. 466, 490. Therefore, he says, the trial court violated his jury trial rights by imposing the upper term based on facts not found by the jury, and we must remand for resentencing or impose the “presumptive midterm.” We disagree.
In Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], the United States Supreme Court reaffirmed its prior holdings that a trial court may increase the penalty for a crime based on a defendant’s prior convictions without submitting that question to a jury. (Cunningham, supra, 127 S.Ct. at p. 868; see Almendarez-Torres v. United States (1998) 523 U.S. 224; Blakely, supra, 542 U.S. at p. 301.) Further, before Cunningham, California courts broadly construed this prior conviction exception to Blakely and Apprendi to apply not only to the fact of the prior convictions, but also to other issues relating to the defendant’s recidivism, including the existence of “numerous” or increasingly serious prior convictions. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [“courts have held that no jury trial right exists on matters involving the more broadly framed issue of ‘recidivism’”]; see also People v. McGee (2006) 38 Cal.4th 682, 706-707 [“numerous state and federal court decisions have interpreted the Almendarez-Torres exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendant’s recidivism”].) Jackson argues nonetheless that the Almendarez-Torres exception must be narrowly construed and does not apply in this case.
Our Supreme Court’s recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II) is to the contrary. In Black II, the California Supreme Court concluded that a judge without a jury is permitted to find the defendant suffered prior convictions and also to make other findings “related” to these convictions, such as whether the convictions were “numerous or of increasing seriousness”—as long as those findings are supported by an examination of the record. (Black II, supra, 41 Cal.4th at pp. 819-820.) Moreover, if a single aggravating factor not requiring a jury finding is available to the sentencing judge, then imposition of an upper term sentence is authorized even if the judge used other impermissible factors in deciding to impose that sentence. (Id. at p. 813 [“so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found true by a jury”].)
Here, Jackson waived his right to a jury trial on the prior conviction for grand theft alleged in the information and admitted this conviction. He also admitted violating his probation and went on to violate probation a second time. Further, the trial court’s recitation of Jackson’s extensive criminal history and performance on probation is supported by an examination of the record. Such factors relating directly to Jackson’s recidivism independently satisfy Sixth Amendment requirements and render him eligible for the upper term. (Black II, supra, 41 Cal.4th at pp. 819-820.)
In his reply brief, Jackson cites to People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted, October 10, 2007, S154857, as authority for his argument that prior juvenile adjudications do not constitute prior convictions under the Sixth Amendment and consequently neither his performance on probation as a juvenile nor the frequency of his juvenile adjudications could subject him to an upper term sentence. As review has been granted in this case, Jackson’s reliance is misplaced. Moreover, as we concluded in People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1080, and as numerous California decisions have held, the use of juvenile adjudications as prior convictions under the Three Strikes Law is constitutional. (People v. Tu (2007) 154 Cal.App.4th 735, citations omitted.) As the courts in People v. Tu, supra, 154 Cal.App.4th 735, 747-750, and People v. Grayson (2007) 155 Cal.App.4th 1059, have concluded, we agree that there is no constitutional impediment to the trial court’s consideration of juvenile adjudications in determining to impose an upper term sentence.
Consequently, Jackson has failed to demonstrate error.
DISPOSITION
The judgment is affirmed.
We concur:
PERLUSS, P. J., ZELON, J.