Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05NF1272, Gregg L. Prickett, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found Ted Matthew Miltimore guilty of possession of a controlled substance for sale and active participation in a criminal street gang. He complains the trial court’s imposition of the upper term for the gang crime violated his right to a jury trial enunciated in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). For the reasons expressed below, we affirm.
I
Factual And Procedural Background
We present an abbreviated version of the facts because defendant’s appeal focuses solely on the legality of his sentence. An officer found methamphetamine on defendant’s person and in a Placentia apartment where he was present on March 30, 2005. A gang expert testified defendant was an active member of the South Side Krooks (SSK), a criminal street gang whose members engage in methamphetamine sales. Defendant testified he possessed the methamphetamine for sale, but claimed he did it to make money only for himself and not his gang.
After striking two of three prior felony convictions alleged as strikes (Pen. Code, § 667, subds. (d)-(i); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530), the trial court imposed an 11-year term comprised of a doubled upper term of six years for the gang count, and a five-year term for a prior serious felony conviction (Pen. Code, § 667, subd. (a)). It imposed a concurrent term for the drug count, and dismissed a prior prison term enhancement. (Pen. Code, § 667.5, subd. (b).) The trial court stated it selected the upper term because defendant committed the current offense while on parole and had absconded from parole supervision. The court also imposed the upper term because it had stricken two of defendant’s three prior strikes.
The court relied on the nonviolent nature of the current crimes, and the fact the prior offenses occurred during one transaction.
II
Discussion
In Cunningham, the United States Supreme Court held that a defendant is entitled to have a jury determine beyond a reasonable doubt the existence of any fact, other than a prior conviction, that exposes a defendant to a sentence greater than the statutory maximum. (Cunningham, supra, 127 S.Ct. at pp. 863-864.) Examining California’s determinate sentencing law, the Supreme Court concluded the middle term, not the upper term, is the “relevant statutory maximum.” (Id. at p. 868.) Relying on Cunningham, defendant contends the trial court violated his Sixth Amendment right to a jury trial by imposing the upper term based on his unsatisfactory performance on parole and the fact the court struck two prior “strike” convictions. In making this argument, defendant acknowledges a defendant has no right to a jury trial if the trial court pegs the increased sentence on the fact of a prior conviction. Defendant asserts, however, the court’s reasons “required more than the ‘“fact” of a prior conviction’” because “each [reason] poses factual questions not answerable based on the record of a prior conviction.”
To resolve defendant’s claim, we focus only on whether the trial court could aggravate defendant’s sentence after striking the two prior convictions for purposes of the Three Strikes law. Because we conclude the court could rely on the priors without violating defendant’s jury trial right, we need not consider whether a judge may evaluate a defendant’s performance on probation or parole, an issue currently pending before the California Supreme Court. (People v. Towne, review granted June 18, 2004, S125677, supp. briefing ordered, Feb. 7, 2007.)
As noted above, the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, 127 S.Ct. at p. 868; Almendarez-Torres v. United States (1998) 523 U.S. 224, 246.) Explaining the reason for this exception, the United States Supreme Court observed that unlike other factors used to increase a defendant’s sentence, “a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” (Jones v. United States (1999) 526 U.S. 227, 249.) The California Supreme Court recently construed the prior conviction exception broadly to include not only the fact of a prior conviction, but also “other related issues” concerning a defendant’s recidivism, such as the existence of “numerous” or increasingly serious prior convictions. (People v. Black (2007) 41 Cal.4th 799, 818, 820 (Black II).)
Here, defendant was eligible for a potential life sentence under the Three Strikes law based on his prior convictions. The court struck the priors for purposes of the Three Strikes law but, based on the priors, imposed the upper term. Contrary to defendant’s suggestion, the reasons supporting the trial court’s decision to strike the priors do not pose relevant “factual questions not answerable based on the record of a prior conviction.” Simply put, the trial court did not strike the priors because it found they were not true. And once the priors were legitimately established as true, which defendant does not dispute, the trial court’s reliance on defendant’s prior convictions to aggravate defendant’s determinate sentence falls squarely within the prior conviction exception.
Based on Black II, we discern no constitutional impediment to the court’s sentence, even if it is later determined the court erred in considering the additional factor of defendant’s performance on parole. As Black II explained, imposition of the upper term that satisfies constitutional requirements, such as the prior conviction exception, does not violate defendant’s Sixth Amendment jury trial right because “[n]o matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional.” (Black II, supra, 41 Cal.4th at p. 815.)
III
Disposition
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J., IKOLA, J.