Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA080806, Kelvin D. Filer, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
SUMMARY
Following a court trial, Carlton Mosley was convicted of one count each of assault with a deadly weapon and making criminal threats. The trial court also found true the allegation that Mosley had suffered one prior strike conviction. The court then sentenced Mosley to a term of eight years, eight months in state prison. Mosley appeals, claiming sentencing error. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
On May 19, 2005, Mosley called his ex-fiancee Shekita Gilbaux, saying he had just been released from prison and demanding that she pick him up at the bus station on Temple and 1st in Los Angeles. Gilbaux drove there in her 1988 Grand Marquis. When she arrived, Mosley said, “Bitch, why you in my car? Bitch, you ain’t got no license. Scoot your punk ass over.” As Mosley drove, he threatened Gilbaux, saying “he should fuck the shit out of [her]” and “I’m gonna fuck you up when I get home.” “I got to jail behind your punk ass. You gonna get what you deserve.”
Mosley was in custody in the state prison in Chino on a parole violation relating to an earlier domestic violence charge involving Gilbaux. After Gilbaux dropped the charges, he was released. As the trial court acquitted Mosley on the counts relating to this prior incident in March 2005 as well as subsequent events, the evidence in this regard is not set forth in detail; instead, this summary is limited to the events of May 19 and 20, 2005, for which Mosley was convicted.
Later, when Mosley stopped the car, Gilbaux tried to get away, fearing what would happen. He came after her, saying, “They told me I was crazy. They told me I was 5150. Bitch, I show you 5150.” He grabbed Gilbaux around the throat, and she could not catch her breath. He told her, “I’m gonna show you what the police did to me.” He then pushed her to walk, shoving her side to side against the walls until they reached the front door of the apartment. He threw her down onto the steps, and said, “Get your ass in the house and get my shit.”
Gilbaux has cerebral palsy which affects her speech and her ability to walk. Her spine is crooked and she cannot use her right side.
As she tried to gather Mosley’s belongings, he was “steady talkin’” about what he was going to do to her, that he was “gonna fuck [her] up,” that he was “gonna kill [her].” He hit her twice. He grabbed her and threw her to the couch, telling her, “Bitch, if I wasn’t on parole, I put a nine in your mouth and blow your fuckin’ head off.” He grabbed a knife and said, “I should cut your throat,” but then left with Gilbaux’s keys, phone and chain. She told him to return her things, but he refused and locked her out of the apartment before driving off.
Hysterical, Gilbaux went to her neighbor’s apartment and called “911.” She filed a police report and also made a report to Mosley’s parole agent. The next day, she saw Mosley leaving his parole agent’s office, and when she drove to her grandmother’s house, he was driving “donuts” and tried to hit her with the Marquis he had taken the night before. Mosley left but returned with one of the car’s windows shot out. He told Gilbaux he missed her and knew she missed him and asked Gilbaux to help him move the car. When she refused, he pulled her to the back of the driveway. She yelled for help, and he left when the landlord arrived.
About an hour later, Mosley went to Gilbaux’s “talking crazy,” demanding the car and threatening to kick out her windows. Gilbaux told him he needed to leave because she was going to call the police, but he remained. When the police arrived, he “went off.” In front of officers, he continued threatening Gilbaux, telling them “what gangbanger set he was from” and “what he [was] gonna do to [Gilbaux].” He told her, “Bitch, I’m gonna kill you and your sister.”
Mosley was arrested and charged (in an amended information) with two counts of assault with a deadly weapon (counts 1 and 3), one count of corporal injury to a cohabitant (count 2), making criminal threats (count 4) and two counts of dissuading a witness from testifying (counts 5 and 6). It was further alleged that Mosley had suffered a prior strike and two prison priors.
A defense objection to one of the counts for dissuading a witness from testifying was sustained.
Mosley waived his right to a jury trial. At the court trial, the People presented evidence of the facts summarized above. Mosley testified in his own defense. The trial court found Mosley guilty of the first assault with a deadly weapon count (count 1) and the criminal threat count (count 4). After being presented with the prosecution’s evidence—a “prior package” relating to a first degree burglary conviction (as well as Mosley’s own testimony purporting to dispute but inadvertently admitting this prior conviction), the trial court found true the prior strike allegation.
The trial court sentenced Mosley to state prison for a term of eight years, eight months: the upper term of four years on the assault count, doubled under the Three Strikes Law, plus a consecutive eight-month term on the criminal threat count. Mosley appeals.
DISCUSSION
The Trial Court Did Not Err in Imposing the Upper Term on Count 1 or in Ordering Imposition of a Consecutive Sentence on Count 4.
At the sentencing hearing on March 22, 2006, the trial court explained: “As to count 1 [(assault with a deadly weapon), Mosley] is . . . sentenced to state prison for the high term of four years. [T]he court is selecting the high term since it finds that the aggravating circumstances outweigh the mitigating circumstances in this case. Specifically, [Mosley] has numerous prior convictions, his prior performance on probation and parole was unsatisfactory, and so clearly his aggravating circumstances outweigh any mitigating circumstances. . . . [¶] That is going to be doubled because of the strike.” “[A]s to count 4 [(criminal threats)], I’m going to impose one-third the midterm and that’s eight months and that’s going to be consecutive to the time that would be served on count 1 . . . because it appears that the conduct alleged as to the assault and the threats, there was a period of time that separated them. The court is not finding that [Penal Code] section 654 applies and [the sentences on these counts] should run consecutive . . . .”
All undesignated statutory references are to the Penal Code.
Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and arguing that People v. Black (2005) 35 Cal.4th 1238 (Black I) was wrongly decided, Mosley says he was denied a jury trial with regard to the trial court’s findings he had numerous prior convictions and his performance on probation and parole was unsatisfactory, and this error was not harmless beyond a reasonable doubt. In the respondent’s brief, the Attorney General argues that Mosley waived any claim of sentencing error by failing to object under Blakely at the sentencing hearing and his claim fails on the merits under Black I as it held Blakely does not invalidate California’s upper term sentencing procedure and does not apply to the decision to impose a consecutive sentence.
In Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), after the completion of briefing in this case, the United States Supreme Court disagreed with the decision in Black I and held California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by authorizing the trial judge to make factual findings that subject a defendant to the possibility of an upper term sentence. Nevertheless, the Cunningham court reaffirmed the United States Supreme Court’s prior holdings that the trial court may increase the penalty for a crime based upon the defendant’s prior convictions without submitting that question to a jury. (Cunningham, supra, 127 S.Ct. at p. 868; see Almendarez-Torres v. United States (1998) 523 U.S. 224; Blakely, supra, 542 U.S. at p. 301; Apprendi v. New Jersey (2000) 530 U.S. 466, 488, 490 (Apprendi).)
Thereafter, the California Supreme Court addressed the Cunningham decision in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). “The United States Supreme Court has consistently stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Black II, supra, 41 Cal.4th at p. 818, citing Cunningham, supra, 127 S.Ct. at p. 868; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. 466; and Almendarez-Torres, supra, 523 U.S. 224.) The Black II court concluded that a judge without a jury is permitted to find the defendant suffered prior convictions and also to make other findings “related” to these convictions, such as whether the convictions were “numerous or of increasing seriousness”—as long as those findings are supported by an examination of the record. (Black II, supra, 41 Cal.4th at pp. 819-820.)
We issued orders authorizing supplemental briefing after issuance of the decision in Cunningham and after the decisions in Black II and Sandoval but received no further briefing from either party.
In Black II, supra, 41 Cal.4th at page 813, the California Supreme Court further ruled that “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.’” Accordingly, our Supreme Court held, it does not violate the Sixth Amendment for a trial judge to engage in additional fact finding with respect to other aggravating factors once a single constitutionally permissible aggravating factor has been identified. (Id. at p. 816, italics added [“imposition of the upper term does not infringe upon the defendant’s constitutional right to a jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s prior record of convictions”].)
Consequently, there was no Cunningham/Blakely error in this case as the trial court relied on the fact of not just one (and Mosley admitted one), but a number of prior convictions in Mosley’s lengthy criminal history. In addition to the prior strike Mosley admitted, the record evidences at least another ten convictions (including assault, battery and terrorist threat convictions) predating the crimes for which he was sentenced in this case.
Similarly, the record supports the second factor cited by the trial court—Mosley’s prior performance on parole and probation was unsatisfactory. Indeed, he was on parole at the time he committed these crimes. Although the question of whether a defendant’s parole status falls within the prior conviction exception was not directly presented in Black II, the California Supreme Court’s construction of the prior conviction exception leads us to conclude that our Supreme Court would consider a defendant’s status on parole to be a “fact that increases the penalty for a crime beyond the prescribed statutory maximum” (Apprendi, supra, 530 U.S. at p. 490) but that need not be submitted to a jury. (See also People v. Yim (2007) 152 Cal.App.4th 366, 371.)
Either of the factors cited by the trial court—Mosley’s numerous prior convictions or his unsatisfactory performance on probation and parole—“independently satisfied Sixth Amendment requirements and rendered [Mosley] eligible for the upper term.” (Black II, supra, 41 Cal.4th at p. 820.) We find no Sixth Amendment violation here.
As noted, Mosley was sentenced on March 22, 2006—nine months after the California Supreme Court had upheld the constitutionality of California’s determinate sentencing law in Black I, supra, 35 Cal.4th 1238, and ten months before the United States Supreme Court disagreed with the Black I decision in Cunningham. In Sandoval, the California Supreme Court held that, because any Blakely objection would have been futile during the post-Black I, pre-Cunningham interval, a defendant sentenced during that timeframe who did not object to the imposition of an upper term sentence did not forfeit his or her constitutional claim. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
As for Mosley’s claim that the trial court erred in sentencing him consecutively, the United States Supreme Court did not address the issue of consecutive sentencing in Cunningham. In Black II, supra, 41 Cal.4th at page 823, however, our Supreme Court reaffirmed its determination that the imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights. Accordingly, we find no error.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. ZELON, J.