Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA055388. Joan Comparet-Cassani, Judge.
Susan Pochter Stone, 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, Lawrence M. Daniles, Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.
COOPER, P. J.
This is the second time we have reviewed this case. The first appeal was from a judgment following the jury trial in which appellant Thomas Jason Milam was convicted of multiple crimes committed on January 4, 2003, arising from the robbery of employees in a pawnshop; the subsequent police pursuit which included appellant’s shooting at officers; and appellant’s breaking into the townhouse of Teresa C. Appellant was sentenced to a total determinate term of 115 years and eight months in prison, including terms for firearm enhancements. That appeal concerned only certain crimes related to his breaking into the townhouse and his subsequent conduct with the victim (count 14, residential burglary; Pen. Code § 459; count 15, kidnapping to commit robbery, Pen. Code § 209, subd. (b)(1)). Concluding that on the specific facts of this case there was insufficient evidence of kidnapping, we reversed the conviction on count 15 and remanded for resentencing; in all other respects we affirmed the judgment.
The instant appeal follows our remand and the trial court’s resentencing of appellant, raising the issue of whether the constitutional principles enunciated in Cunningham v. California (2007) __U.S. __, 127 S.Ct. 856, forbid imposition of consecutive sentences and an upper term for a violation of parole, the reason given for imposition of the upper term on count 5. Concluding there are no constitutional violations, we shall affirm.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
The pawn shop, shootouts, and appellant’s arrest
Summarizing the facts that were part of the previous appeal, on a Saturday night, January 4, 2003, appellant and others held employees hostage at a pawnshop and locked a woman and her four children in the back room after one assailant hit the woman in her head with a gun. The assailants took money and jewelry from the pawn shop and wallets from the three employees. Police responded to a silent alarm activated by the owner of the pawn shop.
As police arrived, the four assailants left the pawn shop and split up. Appellant ran out first and did not go with the other three assailants, but ran down the street with a bag containing jewelry. The police yelled for him to stop and identified themselves. As he was fleeing, appellant fired at police officers.
Appellant climbed into the window of 64-year-old Teresa C. She was very scared and asked him not to hurt her. When she started to flee the apartment, appellant held onto her shirt and threatened to shoot her in the back if he got caught. She eventually ran into her daughter’s apartment; the daughter hit appellant in the face and rescued her mother.
Appellant fled to another townhouse in the building and struggled with a resident while a SWAT team surrounded the building. Appellant attempted to leave the apartment building undetected when police evacuated the building. He was wearing clothes that did not fit him and a pair of female house slippers that appeared to be several sizes too small; he was sweating profusely and did not seem to fit with the Hispanic family from that apartment.
Resentencing
Upon remand, the trial court resentenced appellant. Included in his sentence was an upper term for count 5, second degree robbery, and several consecutive sentences. The sentences totaled 105 years and 8 months.
The two attempted murder counts, for example, were to be consecutive to each other.
The court heard a plea for leniency from appellant’s sister and then began to sentence him. There is very little said in the record regarding the sentence for count 5 or appellant’s status as a parolee. Stressing the nature of the crimes, including attempted murder of two police officers for which he was sentenced to consecutive 15 years to life terms, when the court got to count 5 it stated: “On count 5, which is the base term, the robbery, he is sentenced to five years. [¶] The defendant was on parole at the time he committed the offense on the 12022.53(b), enhancement, he is sentenced to ten years by operation of law. That runs consecutive to the term in count 5, and for the record the determinate is served before the indeterminate term, so we start with count 5.” The court continued sentencing for each of the remaining counts, explaining the reason for each sentence that was to be consecutive to count 5.
Regarding count 12, the court imposed an entire term to run consecutive to the first base term in count 5. The court stated, “And the reason I choose that is because the defendant has a poor performance on parole.” Counts 14 and 16 were to be concurrent to count 5 and stayed for section 654, with the stay to become permanent on the completion of the term in count 5.
CONTENTIONS ON APPEAL
Appellant contends: 1. Imposition of an upper term sentence violated appellant’s Fifth, Sixth and Fourteenth Amendment rights to a jury trial and due process. The only remedy here is to impose the midterm because any other approach will violate the Fifth Amendment double jeopardy clause. 2. Imposition of consecutive terms violated appellant’s Fifth, Sixth and Fourteenth Amendment rights to a jury trial and due process. The only remedy here is to impose concurrent terms because any other approach will violate the Fifth Amendment double jeopardy clause.
DISCUSSION
1. The trial court did not err in imposing the upper term for count 5.
Appellant argues that imposition of the upper term without a jury verdict violates the federal Constitution because the court relied on factors not found true beyond a reasonable doubt and by a jury. “Cunningham concluded that the DSL violates a defendant’s right to jury trial because ‘under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, --- U.S. at p. ----, 127 S.Ct. at pp. 863-864.)” (People v. Black (2007) 41 Cal.4th 799, 809 (“Black II”).)
There is a stated exception to that general rule which applies to allegations of prior convictions. “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. (Cunningham, supra, --- U.S. at p. ----, 127 S.Ct. at p. 868; Blakely [v. Washington (2004)] 542 U.S. [296,] 301, 124 S.Ct. 2531; Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490, 120 S.Ct. 2348; Almendarez-Torres v. United States (1998) 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (Almendarez-Torres).) ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, 523 U.S. at p. 243, 118 S.Ct. 1219.)” (Black II, supra, 41 Cal.4th 799, 818.)
The parties differ as to whether a defendant’s parole status is such a recidivist basis for an upper term that it can be decided by the court. The precise issue, whether parole is a recidivist fact, is currently before our Supreme Court. (People v. Towne (May 17, 2004, B166312), review granted July 14, 2004, S125677.) We agree with Division Six of this court that a defendant’s parole status can be considered without a factual finding by a jury. “[A]ppellant’s status as a parolee and his prior unsatisfactory performance on parole . . . . can be determined by reference to ‘court records’ pertaining to appellant's prior convictions, sentences and paroles. The mere recitation of his dates of conviction and releases on parole . . . demonstrate, as a matter of law, that he committed new offenses while on parole. Thus he performed poorly on parole. (See [citation] [parole status only as an aggravating factor may support upper term without a jury finding thereon].) No trial court or jury could rationally find otherwise. As a result, these factors fall within the Apprendi exception to the jury trial right. The trial court did not violate appellant’s Sixth Amendment rights by imposing the upper term without these findings by a jury.” (People v. Yim (2007) 152 Cal.App.4th 366, 371.)
A rehearing was granted in the principal case cited upholding parole as a recidivism. Nevertheless, we agree with the reasoning in People v. Yim, supra, 152 Cal.App.4th 366, 371.)
Appellant also argues that he was entitled to prior notice before parole violation could be used to impose the upper term, citing Justice Stevens’ dissenting opinion in Washington v. Recuenco (2006) 548 U.S. 212, 126 S.Ct. 2546, 2554. The contention is that his parole status was not pleaded in the information, so his right to due process was allegedly violated. There is as yet no requirement that such recidivist factors be pleaded in the information in order for the trial court to use them to apply the upper term.
In his dissenting opinion, Justice Stevens observed that the “Court does not address the strongest argument in respondent’s favor-namely, that Blakely errors are structural because they deprive criminal defendants of sufficient notice regarding the charges they must defend . . . .” (Washington v. Recuenco, supra, 548 U.S. 212, 126 S.Ct. 2546, 2554.)
Because we find no violation in applying the upper term without a jury verdict, we need not decide the standard of prejudice and/or procedure upon resentencing, issues raised by both parties.
2. Pursuant to Black II, the imposition of consecutive terms does not violate appellant’s rights.
Appellant next challenges the imposition of consecutive sentences absent a jury’s factual findings to support the sentence. Black II, supra, 41 Cal.4th 799, 806, has decided that issue against appellant: “Finally, consistent with this court’s determination in Black I, we hold that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms.”
Our Supreme Court in Black II explains, “The high court’s decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[ ] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[ ] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ (Black I, supra, 35 Cal.4th at p. 1264, 29 Cal.Rptr.3d 740, 113 P.3d 534.) Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” Again, Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455, requires our compliance with Black II.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.