Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F0096
BLEASE, Acting P. J.
A jury convicted defendant Eddie Morris Jackson of corporal injury to a co-habitant (Pen. Code, § 273.5, subd. (a)) and misdemeanor child endangerment. (§ 273a, subd. (b).) In a subsequent bench trial, the trial court found true the allegation in the complaint that defendant had served one prior prison term. The trial court denied probation and sentenced defendant to the upper term of four years for the corporal injury conviction, and a consecutive one-year term for the prior prison term enhancement. The court further ordered defendant to pay a $400 domestic violence fine pursuant to section 1203.097, subd. (a), and a $650 fine.
References to an unspecified section are to the Penal Code unless otherwise noted.
The information alleged defendant had served two prior prison terms, but the court found only one prior term was proven.
Defendant argues the trial court’s imposition of the upper term violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). He also claims the $400 probation fine was improperly imposed because he was not granted probation, and the $650 fine requires correction of the abstract of judgment to set forth what portion of that amount is either fine or penalty assessment. We shall order the $400 fine stricken and as to the $650 fine, we shall remand for correction of the abstract to specifically identify what portion of that sanction is fine, fee, or penalty assessment. We shall otherwise affirm the judgment of conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are undisputed on appeal. Defendant was convicted of corporal injury to Kimberly Rogers, the mother of his two children, as well as of child endangerment to the younger of the two children. Additionally, the trial court found true an allegation that defendant had previously served a prison sentence for possession or purchase of cocaine base for sale.
The trial court sentenced defendant to the upper term of four years for the corporal injury count. In ruling that the upper term was warranted, the trial court made the following statement:
“[W]ith or without the prohibitions in the Cunningham-Blakely line of cases applying, the aggravated term appears to be appropriate, because in either setting, the circumstances in aggravation outweigh the absence of any mitigating circumstances.
As noted, Mr. Jackson has suffered a prior prison term. The record that’s been set forth, as corrected on Mr. Gorder’s request, remains one of a significant number of prior convictions. He was on a grant of probation at the time of the offense, and by virtue of the offense alone performed unsatisfactorily.
Those circumstances alone, the ones set forth in [California Rule of Court, rule 4.421] (b)(2) [numerous convictions increasing in seriousness], (3) [prior prison term], (4) [defendant on probation or parole at time of offense] and (5) [prior performance on probation or parole unsatisfactory], absent more, would warrant the imposition of the aggravated term. I dare say, in light of the circumstances, the prior criminality and the prior prison term alone would likewise.
In this circumstance, I will separately find . . . the additional factors that in this instance the victim was especially vulnerable and the crime did involve the threat of great bodily injury weigh in as well, and they separately or in concert with those previously noted pertaining to Mr. Jackson himself would warrant the imposition of high term.”
DISCUSSION
I
Sentencing
Defendant argues the trial court violated his constitutional rights to a jury trial and due process when it sentenced him to the upper term without a finding by the jury that any of the aggravating factors upon which it relied were true. Defendant recognizes that we are bound by the California Supreme Court’s decision in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Nevertheless, he raises the issues to preserve them for federal review.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455] (Apprendi), the United States Supreme court held: “Other than the fact of 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.” The high court extended this rule to California’s Determinate Sentencing Law in Cunningham, supra, where it held that a defendant’s Sixth and Fourteenth Amendment right to a jury trial was violated when a judge imposed an upper term sentence based on the judge’s, rather than the jury’s, finding of aggravating circumstances. The court held that the middle term sentence is the maximum sentence a judge may impose unless the facts supporting the aggravating circumstances are found true by a jury. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876].)
Recently, the California Supreme Court decided Black II, supra, in which it reasoned that because the existence of a single aggravating circumstance is legally sufficient under California’s determinate sentencing scheme to make a defendant eligible for the upper term, the existence of a single aggravating circumstance that has been established in accordance with constitutional requirements makes the upper term the statutory maximum term. (Black II, supra, 41 Cal.4th at p. 813.) Accordingly, the 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.)
For the reasons set forth in Black II there was no constitutional violation in the imposition of the upper term for the corporal injury count. “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.) In California and elsewhere, courts have interpreted Apprendi to mean that, not only is no jury trial required as to the precise fact of a prior conviction, but also no right to jury trial exists on matters more broadly described as recidivism. (People v. McGee (2006) 38 Cal.4th 682, 700-709 and cases cited.)
Here, the trial court found defendant had suffered a prior prison term, and “a significant number of prior convictions.” The trial court specifically listed the four recidivism factors in California Rules of Court, rule 4.421 (b) (2-5). These factors made defendant eligible for an upper term sentence, and the trial court was free to consider other factors in imposing an upper term sentence. (See Black II, supra, 41 Cal.4th at p. 812.)
Defendant also argues the resentencing procedures on remand, which pursuant to Sandoval, supra, 41 Cal.4th at page 846, are to be conducted consistent with amendments to the sentencing law adopted by the Legislature, deny him equal protection and violate the prohibition against ex post facto laws. We need not consider this argument, since we find no sentencing error, therefore do not remand for resentencing.
II
Section 1203.097 Fine
The trial court imposed a $400 fine pursuant to section 1203.097, which requires a minimum payment of $400 as one of the terms of probation. Defendant was not granted probation, thus no fine pursuant to this section could be lawfully imposed. We shall order the fine stricken.
III
$650 Fine/Penalty Assessment
At the sentencing hearing, the trial court ordered, “that there be paid a fine including penalty assessments of $650.00 . . . .” The abstract of judgment simply lists a “fine of $650.00.” Defendant argues, and respondent concedes, that the abstract of judgment must set forth how much of the total amount is either fine or penalty assessment. This court has held that even though “a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) Therefore, “[a]ll fines and fees must be set forth in the abstract of judgment.” (Ibid.) We shall direct the court to correct this clerical error.
DISPOSITION
The judgment is modified to strike the fine imposed pursuant to Penal Code section 1203.097. The cause is remanded with directions to the trial court to identify what portion of the $650 amount imposed as fine and penalty assessment is fine, and which part is penalty assessment. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract reflecting the modifications and corrections ordered by this court and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
We concur: DAVIS, J., MORRISON, J.