Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. LP31585
Richman, J.
Defendant Edward Lee Learn was sentenced to the aggravated term of 18 months in state prison after he entered a plea of guilty to a single charge of attempting to send harmful matter to a minor “with the intent of arousing, appealing to, or gratifying the lust or passion or sexual desires of that person or of [the] minor.” (Pen. Code, §§ 288.2, subd. (b), 664.) That term was doubled to three years because defendant admitted that he had a prior conviction for purposes of the three strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All further statutory references are to the Penal Code unless otherwise indicated.
By the time defendant’s timely appeal was fully briefed, our Supreme Court had held in People v. Black (2005) 35 Cal.4th 1238 (Black I) that imposition of aggravated terms under California’s determinate sentencing law (DSL) did not violate Blakely v. Washington (2004) 542 U.S. 296 (Blakely). On December 16, 2005, we filed an opinion affirming imposition of the aggravated term because Black I was binding on us as an intermediate appellate court. (People v. Learn (Dec. 16, 2005, A109084) [nonpub. opn.] (Learn I).)
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court held that Black I was wrongly decided. The court summarized California’s DSL, and how it fit within the right-to-jury decisions that began with Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and culminated with Blakely: “Under California’s DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. . . . [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.] Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the DSL violates Apprendi’s bright-line rule: Except for 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.’ [Citation.]” (Cunningham, supra, at p. ___ [127 S.Ct. at p. 868].) “Contrary to the Black court’s holding, our decisions from Apprendi to [United States v.] Booker [(2005) 543 U.S. 220] point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. ___ [127 S.Ct at p. 871].)
Our judgment in Learn I was summarily vacated, and the cause was returned to us for reconsideration in light of Cunningham. (Learn v. California (2007) ___ U.S. ___ [127 S.Ct. 1234].)
On July 19, 2007, our Supreme Court issued decisions in People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), responding to Cunningham. We have received supplemental briefing, and now affirm the judgment, including imposition of the aggravated sentence.
Background
A five-count criminal information was filed by the Lake County District Attorney on February 18, 2003, in which defendant was charged with two counts of attempting to send harmful material to a minor (§§ 288.2, subd. (b), 664), one count of willful failure to register as a sex offender (§ 290, subd. (f)(1)), one count of indecent exposure (§ 314, subd. (1)), and one count of possession of child pornography (§ 311.11, subd. (a)). The information included an allegation that defendant had a prior felony conviction that qualified as a strike conviction within the meaning of this state’s three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Initially, defendant pleaded not guilty to the information at his arraignment, but he entered a change of plea at a trial readiness conference held on November 10, 2003. At that time, defendant knowingly and voluntarily pleaded guilty to count 1 (attempt to violate section 288.2), with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, and admitted the strike allegation, in return for which counts 2 through 5 were dismissed. A presentence probation report was ordered, and sentencing was set for January 20, 2004. Because of defendant’s serious health problems, sentencing was continued periodically over the next year, and did not take place until January 10, 2005.
At sentencing, defendant was denied probation because he was statutorily ineligible pursuant to section 667, subdivision (c)(2). The court then imposed the aggravated term of 18 months in state prison, which was doubled because of defendant’s prior strike conviction, for a total aggregate term of three years.
Discussion
I
As Black II summarized: “[U]nder the line of high court decisions beginning with Apprendi . . . and culminating in Cunningham, . . . the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. ___[127 S.Ct. at p. 863]). . . . For this reason, we agree with the Attorney General’s contention that 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 and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence . . . does not violate the defendant’s right to jury trial,” “regardless of whether the facts underlying those circumstances have been found to be true by a jury.” “Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Black II, supra, 41 Cal.4th at pp. 812-813.)
In Sandoval, the court held: “The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. ([Blakely,] at p. 301; see Apprendi, supra, 530 U.S. at p. 490 . . . .)” (Sandoval, supra, 41 Cal.4th at pp. 836-837.)
Both of these exceptions are present here. The trial court stated that it was imposing the aggravated term “by virtue of the defendant’s . . . record of prior convictions.” That record included the serious prior strike conviction defendant admitted when he changed his plea to guilty. Under Black II, that conviction made defendant eligible for imposition of an aggravated term. Any additional circumstances in aggravation found by the trial court are without constitutional significance. (Black II, supra, 41 Cal.4th at pp. 812-813.)
Accordingly, there was no error in sentencing defendant to the aggravated term. Moreover, we note that the full circumstances of defendant’s criminal history, which are detailed in part II, post, constitute an additional fact that made defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at pp. 819-820.)
II
The only other matter is the contention defendant made in his opening brief which we rejected in Learn I. Because there is no further dispute about our resolution of this second contention, we simply reiterate our previous discussion:
Defendant’s counsel, both in the trial court and on appeal, argues that defendant’s prior criminal record is not increasing in seriousness, nor are his convictions numerous. As to the current conviction and dismissed charges, counsel argued that they did not reflect planning, sophistication or professionalism that might justify an upper term. Last, counsel argued that defendant’s early plea constituted a mitigating factor that the court should consider. (Cal. Rules of Court, rule 4.423(b)(3).)
Of course, and as defendant’s appellate counsel acknowledges, any single factor in aggravation is sufficient to justify imposition of an upper term. (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637;see also People v. Osband (1996) 13 Cal.4th 622, 728.) The record here indicates that the trial court’s decision to impose the upper term was not an abuse of discretion and was based on substantial evidence. First, 39-year-old defendant’s prior criminal record included numerous offenses. This record included convictions in Virginia for fraud in 1988, multiple sex crime convictions in 1992 for which he served a term in state prison, and misdemeanor convictions in 1995, including possession of child pornography. Moreover, he was on parole when he picked up the new offenses which resulted in a finding that he violated parole imposed following his state prison term for the 1992 convictions. These facts alone fully justify the court’s conclusion that defendant’s prior performance on parole was unsatisfactory, thus supporting imposition of the upper 18-month term.
Moreover, we disagree with defendant that the circumstances of the current charged crimes did not support the court’s finding of planning, sophistication, or professionalism. In detailing the facts underlying the current charges, the probation report narrates that as part of his official duties, Lake County Detective James McLaughlin frequented Internet chat rooms pretending to be a 14-year-old boy named “Adam” who lived in New Hampshire, in the hope of attracting the attention of child molesters. In late August 2002, “Adam” was contacted by defendant, who was using a Yahoo address as “elearn3.” During their Internet “relationship,” defendant showed “Adam” his penis, and masturbated for him via webcam. Defendant also asked “Adam” to send him pictures of himself engaged in various sexual acts. He also commented that he would “maybe even fly out there, just to see you,” and promised he would “treat you so sweet and loving.”
A police search of defendant’s home found marijuana growing in two rooms using a grow light and “squirrel cage fan.” And although defendant denied any knowledge of, or involvement with “Adam,” police found “Adam’s” name listed on defendant’s Yahoo Instant Messenger buddy list. Police also found several e-mail attachments containing a series of young boys engaged in sexual acts.
These circumstances provide substantial factual support for the trial court’s conclusion that the charged offenses involved planning, sophistication, or professionalism. Defendant’s use of the Internet to lure a person who he believed to be a young boy into a sexual liaison with him, the use of a webcam to further his intentions and to communicate sexually explicit images of himself, and the exchange of downloaded sexual images of young boys over the Internet, all suggest that the crimes involved planning, sophistication, or professionalism.
Therefore, for each and all of the reasons noted, the trial court did not abuse its discretion in selecting the upper term.
Disposition
Our prior decision in Learn I is hereby vacated. The judgment of conviction is affirmed.
We concur: Haerle, Acting P. J., Lambden, J.