Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BA295832 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, Mary Jo Graves and Pamela C. Hamanaka, Assistant Attorneys General, Chung L. Mar and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Omar Lopez (defendant) of second degree robbery. The trial court found true the allegations that defendant had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1) as well as sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to 15 years in prison. The sentence consisted of the high term of five years for the robbery, doubled to 10 years because of his strike conviction, and five years for the section 667 subdivision (a)(1) enhancement.
Defendant appeals on the ground that the trial court violated his rights to a jury trial and due process under the federal Constitution by imposing the upper term sentence without jury findings.
FACTS
On November 27, 2005, Adeliado Galindo (Galindo) drove to a bookstore to donate some paperbacks. As he was removing the books from the trunk of his car, a man slapped him on the back of the head and neck. Galindo was almost able to see the man’s entire face. The man swore at Galindo and put his hand in Galindo’s pocket. He took all the money from the pocket as well as the bag of books and ran away.
Another man approached Galindo and told him excitedly, “It was Blacky.” Galindo reported the incident at a nearby police station. He described the robber and repeated the information about Blacky. Galindo later identified defendant as the robber from a photographic lineup.
Detective Gilbert Alonso of the Los Angeles Police Department was familiar with Blacky. Blacky, whom Detective Alonso identified as defendant, returned one of Detective Alonso’s telephone calls. He claimed that he had merely collected a gambling debt from the individual who made a report against him. When the individual claimed he had no money, defendant reached into the individual’s pocket and took his money.
DISCUSSION
I. Appellant’s Argument
In his initial briefs, relying on Blakely v. Washington (2004) 542 U.S. 296 (Blakely), defendant contended the trial court violated his rights under the Sixth and/or Fourteenth Amendments to the United States Constitution by imposing an upper term sentence without jury findings or proof beyond a reasonable doubt. At the request of this court, defendant submitted a supplemental brief after the decision of the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856] (Cunningham) and the subsequent decisions of the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
Defendant argues that Black wrongly decided that the upper term becomes the statutory maximum upon the existence of a single aggravating factor, since that conclusion is in direct contravention of the ruling in Cunningham. Defendant also contends that the Almendarez-Torres prior-conviction exception to the Blakely rule is no longer viable, or, in the alternative, it should be read narrowly. Therefore, Black erred in holding that the fact that a defendant’s convictions are numerous or of increasing seriousness falls within the exception for a prior conviction. Defendant adds that Black incorrectly held that the fact of a prior conviction may be found true by a preponderance of the evidence.
Almendarez-Torres v. United States (1998) 523 U.S. 224, 227–228 (Almendarez-Torres). In Almendarez-Torres, the United States Supreme Court concluded that a trial court’s reliance on a prior conviction as a sentencing factor does not implicate the Sixth Amendment, i.e., the defendant’s right to a jury trial and to have sentencing factors proved beyond a reasonable doubt. (Almendarez-Torres, supra, 523 U.S. at pp. 239, 246.) The court stated that recidivism, which “‘does not relate to the commission of the offense, but goes to the punishment only’” “is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” (Id. at pp. 243, 244.)
Defendant maintains that resentencing is required, since none of the factors used by the trial court fell within the exception for the fact of a prior conviction and the error cannot be found harmless beyond a reasonable doubt.
II. Proceedings Below
In sentencing defendant to the upper term, the trial court stated, “In reviewing the probation report and the evidence presented at trial, this appears to be his 5th felony conviction. He has served prior prison terms. He was on probation for the same offense, a robbery at the time of this new case, and his performance on probation was obviously very poor. Additionally, far from being a robbery in which there was a lack of violence, the victim described being attacked from behind as he was bent over his trunk. He suffered a blow to his neck or head. I don’t find that the crime itself was devoid of violence. For all of those reasons the court believes that the appropriate term is the upper term of five years for the violation of second degree robbery, . . .”
III. Upper Term Properly Imposed
In Apprendi, the United States Supreme Court held that “[o]ther 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.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) The Supreme Court subsequently held 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.” (Blakely, supra, 542 U.S. at p. 303.) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) The Cunningham court concluded that California’s determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. ____ [127 S.Ct. at p. 871].)
After the decision in Cunningham, the California Supreme Court held 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 fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.) Black and its companion case, Sandoval, reiterated that the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836–837.) Black emphasized that the “‘prior conviction’ exception” must not be read too narrowly; it includes “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.” (Black, supra, at p. 819.)
The probation report detailed defendant’s juvenile and adult criminal history. Defendant’s adult history began in January 1990, when he was convicted of violating section 12020, subdivision (a) (possession of a concealed weapon), for which he received 36 months’ formal probation. In December 1991, he was convicted of violating section 243, subdivision (e) (battery on a spouse) for which he received 24 months’ summary probation. He violated probation in March 1992 and served jail time. In March 2004 he violated probation, and probation was terminated. Defendant was sentenced to prison and was later deported.
In May 2004, defendant was placed on 24 months’ summary probation for a misdemeanor violation of Health and Safety Code section 11355 (delivery of falsely represented controlled substance). He violated probation, and his probation was revoked and later reinstated. In March 2005, he was placed under three years’ Proposition 36 probation for violating Health and Safety Code sections 11350, subdivision (a) (possession of a controlled substance) and 11377, subdivision (a) (possession of certain controlled substances). In July 2005, probation was revoked and Proposition 36 was terminated. Both were reinstated in October 2005. In November 2005, his probation was revoked and Proposition 36 was terminated, only to be again reinstated and again revoked.
In June 2005, defendant was convicted of robbery in violation of section 211. He was sentenced to three years in state prison and execution of sentence was suspended. He was placed on formal probation for five years. On November 27, 2005, he committed the instant offense.
This chronicle of defendant’s criminal history justifies the trial court’s determination that defendant was on probation for a prior robbery at the time of the instant offense, that his performance on probation was poor, and that he served prior prison terms. These are the kinds of findings relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black, supra, 41 Cal.4th at pp. 819–820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370–371.) Once the trial court made its determination, defendant was eligible for the upper term, which became the statutory maximum. (Black, supra, at p. 816.) The trial court’s finding of additional facts that supported its discretionary choice of the upper term—the fact that the crime involved violence—thus did not violate defendant’s right to trial by jury. (Id. at p. 820.) We find no violation of Cunningham.
The issue of whether a trial court can constitutionally impose an upper term based on the fact that the defendant was on parole when the crime was committed, or the defendant has served a prior prison term, or the defendant’s prior performance on probation or parole was unsatisfactory, without a jury determination, is currently before the California Supreme Court in People v. Towne (review granted July 14, 2004, S125677).
Finally, we note that defendant challenges the Black decision in several regards. We, of course, are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.