Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA298592, Judith L. Champagne, Judge.
Judith Vitek, 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, Theresa A. Patterson and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Rick Jenkins appeals from a judgment following a jury trial in which he was convicted of assault by means of force likely to produce great bodily injury involving domestic violence. Defendant contends: (1) his federal constitutional rights were violated by the trial court’s imposition of the upper term based on factors that were not determined by a jury; and (2) the trial court violated the dual-use prohibition by using aggravating factors to impose the upper term that were also the basis of sentence enhancements. We affirm.
FACTS
Carolyn Coleman dated defendant for approximately six months from December 2004 to June 2005. In June 2005, she refused to let him borrow her car and he beat her. Coleman stopped dating defendant. She did not report the incident to the police.
On February 23, 2006, defendant’s mother asked Coleman to bring her some papers from defendant’s house. Defendant took Coleman to her friend’s house for a visit and picked her up in the early evening. They returned to his house. When Coleman attempted to leave, he asked her to take him to the store. She refused, because her car was low on gas. Defendant became furious, called her names, and followed her out to her car while holding a beer can. He demanded that she return a pair of his shorts that she was wearing. Coleman took the shorts off and gave them back. Defendant punched Coleman while trying to gain possession of her car keys. Defendant poured beer on Coleman, hit her in the mouth, knocking out two teeth, and bit her hand and chest. Coleman honked the car horn and called for help. Defendant stopped the attack and let her go when neighbors and firefighters arrived.
PROCEDURAL BACKGROUND
Defendant was charged by information with assault by means likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1), and assault with a deadly weapon, to wit, a beer can, in violation of section 245, subdivision (a)(1). The information further alleged as to the first count that defendant personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e). The information alleged as to both counts that defendant had served a prior prison term pursuant to section 667, subdivision (b), and that defendant was ineligible for probation within the meaning of section 1203, subdivision (e)(4), due to his nine prior felony convictions.
All further statutory references are to the Penal Code.
After a jury trial commencing on May 22, 2006, defendant was convicted of assault by means of force likely to produce great bodily injury with a special allegation that the offense was committed during domestic violence to be true. Defendant was acquitted of assault with a deadly weapon. Defendant admitted the prior prison term.
During sentencing, the trial court stated: “The court heard the evidence, of course, over the last several days and was struck by the excessive amount of violence inflicted upon the victim, Mrs. Coleman. [¶] The defendant has taken no responsibility either in his statements to the probation department or in his testimony in this courtroom. Apparently he felt that it was his right to abuse Mrs. Coleman. As a matter of fact, he described himself as the victim in this whole scenario. [¶] The jury found otherwise and I totally concur with their determination. . . . [¶] . . . I find that his criminal history, even though it doesn’t involve violence, it is indicative of somebody who is simply unwilling or disinterested in following the rules that everybody else has to follow because every couple of years he is going back to court and ultimately to prison.”
In addition, the trial court found that defendant’s “conduct reflects a callousness and viciousness, convincing this court that he poses a serious risk to the community. [¶] The court notes an extensive criminal history that dates back 19 years and consists of approximately seven felonies. Obviously his conduct in the instant matter reflects that his criminality is becoming more serious, the nature of this offense being one involving great violence. [¶] The court is persuaded that the upper term is clearly warranted under all these circumstances in aggravation.” The court found no circumstances in mitigation. The court sentenced defendant to a nine-year prison term, which consisted of the upper term of four years, plus the midterm of four years pursuant to section 12022.7, subdivision (e), and one year pursuant to section 667.5, subdivision (b). Defendant filed a timely notice of appeal.
DISCUSSION
Determination of Sentencing Factors By Trial Court
Defendant contends the trial court’s imposition of the upper term for the assault violated his federal constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), because there was no jury finding of the aggravating factors relied upon by the court. We affirm in accordance with our Supreme Court’s recent opinion in People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 WL 2050875] (Black II).
At the sentencing hearing, the trial court found defendant deserving of an upper term sentence based on a variety of factors, including his criminal history which showed increasingly serious criminal behavior.
In Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), the United States Supreme Court disagreed with our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) and held “California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence.” (Black II, supra, ___ Cal.4th at p. ___ [2007 WL 2050875 at p. *1.]) Nevertheless, the Black II decision made it clear that there is no violation of the constitutional jury trial right 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 v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and its progeny. (Black II, supra, ___ Cal.4th at p. ___ [2007 WL 2050875 at p. *6.])
Accordingly, consistent with federal Supreme Court precedent, a sentencing court’s finding of criminal history as an aggravating circumstance renders a defendant eligible for the upper term sentence. (Black II, supra, ___ Cal.4th at p. ___ [2007 WL 2050875 at p. *6].) “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. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Id. at p. __ [2007 WL 2050875 at p. *10].)
Moreover, numerous decisions from other jurisdictions have interpreted the federal Supreme Court’s recidivism exception “to include 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. [Citations.]” (Black II, supra, ___ Cal.4th at p. __, fn. omitted [2007 WL 2050875 at p. *11].) “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.’ [Citation.]” (Ibid., fn. omitted.)
Therefore, pursuant to Black II, we find defendant’s criminal history established an aggravating circumstance that independently satisfied Sixth Amendment requirements and rendered him eligible for the upper term. (Black II, supra, ___ Cal.4th at p. __ [2007 WL 2050875 at p. *12].)
Dual Use of Aggravating Factors to Impose Upper Term
Defendant contends the trial court violated the dual use prohibition by using aggravating factors to impose the upper term that were also the basis of sentence enhancements. Specifically, defendant contends the court found the fact of his prior prison term and the excessive violence of the assault disclosing callousness and viciousness as factors in aggravation, as well as the basis for the sentence enhancements. We conclude defendant waived this contention by failing to object, the court did not use the same facts as the basis for imposing enhancements and the upper term, and it is not reasonably probable the court would have chosen a lesser sentence.
The failure to lodge an objection to a trial court’s sentencing choices at the time of sentencing concerning its use of mitigating and aggravating factors generally constitutes a waiver of the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353-355.) Where a defendant fails to object to what he or she later considers to be an improper dual use of facts to impose the upper term, the defendant has waived the issue on appeal. (People v. Erdelen (1996) 46 Cal.App.4th 86, 91.)
Even were we to conclude that the issue had not been waived, the trial court did not violate the dual use prohibition. Additionally, as we have explained, the court did not use the fact that defendant served a prior prison term as an aggravating factor. The court relied on the increasingly serious nature of defendant’s lengthy criminal history culminating in the instant case. Only a single valid aggravating factor is necessary to justify the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730.)
Finally, a reviewing court will set aside the sentence only if it is reasonably probable the trial court would have chosen a lesser sentence had it known one or more of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492; People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) Assuming there was an improper dual use of facts, there is no reasonable probability the trial court would impose a lesser sentence in this case, in light of the valid aggravating factor and absence of any factors in mitigation. Error, if any, was harmless.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.