Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F03395
Mihara, J.
Defendant Ricardo Martinez Landecho pleaded guilty to the following: possession of methamphetamine for sale (Health & Saf. Code, § 11378 [count 1]); use of a minor in the commission of count 1 (Health & Saf. Code, § 11380 [count 3]); possession of cocaine for sale (Health & Saf. Code, § 11351 [count 4]); and use of a minor in commission of count 4 (Health & Saf. Code, § 11353 [count 6]). Defendant admitted allegations that the minor used as an agent in the commission of counts 3 and 6 was at least four years younger than defendant (Health & Saf. Code, §§ 11380.1, 11353.1, subd. (a)(3).) Defendant also admitted that he had suffered a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)) and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to 15 years and 8 months in state prison. Following his appeal, this court reversed the judgment and remanded for resentencing. The trial court then imposed a prison term of 15 years. Defendant appealed. Relying on People v. Black (2005) 35 Cal.4th 1238 (Black I), this court held that the trial court did not err in imposing the upper term and affirmed the judgment. The United States Supreme Court remanded the case to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). After issuing an opinion on July 5, 2007, we granted rehearing in light of the California Supreme Court decision in People v. Black (2007) 41 Cal.4th 799 (Black II). After receiving supplemental briefing, we affirm.
This court has taken judicial notice of the record in defendant’s previous appeal in case number H025016. (Evid. Code, § 452, subd. (c).) The statement of facts is based on our prior opinion in People v. Landecho (Sept. 19, 2003, H025016) [nonpub. opn.].)
On August 25, 2001, the police conducted a parole search of defendant and found a pager and some cash. They then asked defendant’s 13-year-old daughter to exit defendant’s car so that they could search it. After she stepped out of the car, an officer noticed small chunks of cocaine and a small plastic bindle fall from her shirt. She also had several large bulges in her shirt. When an officer told her not to cover for her father, she stated, “It’s all mine,” and removed four plastic baggies containing methamphetamine and one containing cocaine. The police also found three plastic baggies of marijuana in her pocket. After searching the passenger compartment of defendant’s car, the police found a digital scale and marijuana.
II. Discussion
Here, the trial court imposed the upper term on count 3 based on the aggravating factors that the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(5)) and that defendant had numerous prior convictions (rule 4.421(b)(3)). The trial court imposed the upper term on the enhancement based on the aggravating factors that defendant suborned perjury from a witness (rule 4.421(a)(6)) and that he was on parole at the time of the offense (rule 4.421(b)(4)).
All further references to the rules are to the California Rules of Court.
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), defendant contends that the trial court’s imposition of the upper terms on count 3 and the sentencing enhancement violated his right to a jury trial. (U.S. Const. 6th & 14th Amends.)
In Apprendi, supra, 530 U.S. 466, 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.” (Id. at p. 490.) In that case, the court focused on “the narrow issue” of whether the sentence for a single crime exceeded the statutory maximum. (Id. at p. 474.) The court further defined the statutory maximum in Blakely. It concluded “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Blakely, supra, 542 U.S. at p. 303.)
In Black I, supra, 35 Cal.4th 1238, the California Supreme Court considered the effect of Blakely on California’s determinate sentencing law. It held that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
Recently, the United States Supreme Court overruled Black I in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. The court held that California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent that it allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Id. at p. 860.) Thus, the trial court may impose the upper term only if the factors relied upon meet the requirements of Apprendi and Blakely. (See id. at p. 871.)
In Black II, supra, 41 Cal.4th 799, the California Supreme Court held that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, . . . the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.)
At issue then is whether the trial court erred in imposing the upper term based on recidivism factors, that is, that he had prior convictions and was on parole. Defendant argues that the “prior conviction” exception to the jury trial right no longer applies after Apprendi, supra, 530 U.S. 466 and Blakely, supra, 542 U.S. 296.
The “prior conviction” exception derives from the court’s opinion in Almendarez-Torres v. United States (1998) 523 U.S. 224. In that case, the court concluded that the fact of the prior conviction was not an element of the present offense and held that a sentence enhancement based on recidivism need not be charged in the felony indictment, even if it increases the defendant’s maximum penalty. (Id. at pp. 226-227.) The Apprendi court described the “prior conviction” exception as “a narrow exception to the general rule.” (Apprendi, supra, 530 U.S. at p. 490.) The precise contours of this “narrow exception” have not yet been delineated.
The issue is currently pending in the California Supreme Court. (See People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914; People v. Towne, review granted July 14, 2004, S125677.)
In Black II, the California Supreme Court considered the applicability of the Almendarez-Torres exception to another recidivism-relating aggravating circumstances, that is, whether the “‘defendant’s prior convictions . . . are numerous or of increasing seriousness.’” (Black II, supra, 41 Cal.4th at p. 818.) The court concluded that this circumstance falls within the “prior conviction” exception, stating: “As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682, 703-706], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres 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. . . . [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation] 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.” (Id. at pp. 819-820.) Relying on the probation report, the Black II court then held that the defendant’s criminal history was an aggravating circumstance that met Sixth Amendment requirements, thereby rendering him eligible for the upper term sentence. (Id. at p. 820.)
As in Black II, here the trial court was not required to look beyond the mere fact of the prior convictions to make its determination that defendant had suffered numerous prior convictions. The probation report reflected that defendant had been convicted of eight misdemeanors: in 1986, 1993 and 1995, he was convicted of driving under the influence (Veh. Code, § 23152); in 1995, he was also convicted of violating a restraining order (Pen. Code, §273.6), driving with a suspended license (Veh. Code, § 14601.1), and two counts of resisting arrest (Pen. Code, § 148); and in 1997, he was convicted of paying or receiving money for adoption of a child (Pen. Code, § 273). The probation report also stated that defendant had suffered three felony convictions: in 1991, he was convicted of shooting at an inhabited dwelling (Pen. Code, § 246); in 1997, he was convicted of infliction of corporal injury on a cohabitant (Pen. Code, § 273.5); and in 1999, he was convicted of possession of a controlled substance (Health & Saf. Code, § 11350). These convictions are numerous. (See Black II, supra, 41 Cal.4th at p. 818.)
A finding the defendant was on parole when he or she committed the current offense requires the trial court to determine the effective dates of parole and the date of the offense. Here, the probation report states that defendant was on parole when the present offenses were committed. Moreover, defendant conceded in his motion to suppress evidence that he was on probation when he committed the charged offenses.
As in Black II, defendant’s criminal history established two aggravating circumstances that satisfied his Sixth Amendment right to a jury trial. Accordingly, the trial court did not err in imposing the upper terms on count 3 and the enhancement.
Defendant also argues that comments in the majority and concurring opinions in Apprendi indicate that the Supreme Court will overrule Almendarez-Torres. He also argues that Black II will not survive a challenge in the United States States Supreme Court. However, Almendarez-Torres and Black II are controlling law, which this court is required to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 457.)
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., McAdams, J.