Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA086197. John T. Doyle, Judge.
Marta I. Stanton, 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, Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
A jury convicted James Nickleberry (appellant) of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). Appellant waived his right to a jury trial on his prior conviction allegations and admitted having suffered a prior conviction of a serious or violent felony (a strike) (Pen. Code, §§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)) and seven prison priors (§ 667.5, subd. (b)).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court denied appellant’s motion to strike his prior conviction allegation and sentenced him to prison for the upper term of three years, doubled to six years because of the strike. The trial court struck all of the prior prison term allegations.
Appellant appeals on the ground that the imposition of an upper term sentence violated Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham) and appellant’s federal constitutional rights to a jury trial and due process.
FACTS
Prosecution Evidence
On August 19, 2006, at approximately 9:00 a.m., Officers Julio Lopez and Charles Hicks of the Los Angeles Police Department were riding in their patrol car near the area of Vermont Avenue and 132nd Street in Los Angeles County. The patrols were in response to numerous burglaries and robberies in the area. When the two officers glanced down an alley, they noticed appellant walking eastbound. The officers made a U-turn and kept observing appellant, who turned around and looked back at the officers. Appellant turned in order to head southbound on Menlo Street, and Officer Lopez saw him release an object from his hand. The object hit the ground and appellant put his hand in his pocket and continued walking.
The officers pulled over their vehicle and made contact with appellant. Officer Hicks returned to the area where appellant had dropped the object and recovered a three-inch glass pipe bearing white residue. Officer Lopez believed the pipe was used for smoking rock cocaine. Officer Hicks noticed a bulge in appellant’s left cheek. He asked appellant to spit out the item and appellant complied. The item was a folded piece of paper containing a substance resembling crystal methamphetamine.
At appellant’s trial, Detective Michael Owens of the Los Angeles Police Department stated that the recovered pipe was one typically used to smoke rock cocaine. The substance found in the piece of paper was a usable quantity of crystal methamphetamine and was of a quantity that could be sold.
A criminalist with the City of Los Angeles Narcotic Unit testified that the substance in the folded paper contained .07 grams of crystal methamphetamine. The white residue on the glass pipe contained rock cocaine.
Defense Evidence
Appellant presented no evidence in his behalf.
DISCUSSION
I. Appellant’s Argument
Appellant contends that the trial court based the upper term sentence on its own factual findings of non-recidivist aggravating circumstances, including the factors that appellant’s prior convictions as an adult are numerous or of increasing seriousness and that appellant was on parole when he committed the crime. According to appellant, because those factual findings were necessary to authorize the upper term sentence, the trial court’s adjudication of those facts under a preponderance standard deprived appellant of his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process.
II. Proceedings Below
After argument on sentencing, the trial court reviewed appellant’s lengthy criminal history and explained its reasons for not striking appellant’s prior strike conviction. The court stated that, despite the age of the prior (20 years), appellant had led far from a crime-free life from that date to the date of the instant crime. The court then selected the high term of three years and doubled that for a total term of six years in prison. The court struck the prison priors. The trial court indicated it had reviewed the probation report, which listed no factors in mitigation and two factors in aggravation (those to which appellant now objects): the fact that appellant’s prior convictions as an adult were numerous or of increasing seriousness and the fact that appellant was on parole when he committed the crime.
III. No Sixth Amendment or Due Process Violation
In Apprendi v. New Jersey (2000) 530 U.S. 466, 489-490 (Apprendi), the United States Supreme Court upheld the validity of its decision in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres) and 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.” In Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), the Supreme Court explained that the relevant “‘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.” In Cunningham, the United States Supreme Court held that California’s determinate sentencing law, which authorizes a judge to find the facts permitting an upper term sentence by a preponderance of the evidence, violates a defendant’s right to trial by jury. (Cunningham, supra, 549 U.S. 270 [127 S.Ct. at pp. 860, 871].)
Cunningham reversed in part the judgment in People v. Black (2005) 35 Cal.4th 1238 (Black I) and remanded the case to the California Supreme Court for further consideration in light of its decision. (Cunningham, supra, 549 U.S. 270 [127 S.Ct. at p. 871.) In People v. Black (2007) 41 Cal.4th 799 (Black II) the Court held that the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities “renders a defendant eligible for the upper term sentence” under the determinate sentencing law. (Black II, supra, at p. 812.) Black II also held that “[t]he determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black II, supra, at pp. 819-820.)
In People v. Towne (2008) 44 Cal.4th 63 (Towne), the California Supreme Court reiterated Black II’s holding “that the right to a jury trial does not apply to the determination of the aggravating circumstance that ‘[t]he defendant’s prior convictions . . . are numerous or of increasing seriousness.’” (Towne, supra, at p. 75.) Therefore, Black II and Towne compel the conclusion that the trial court properly imposed the upper term based on its finding of this factor alone.
Towne observed that Black II did not determine whether a defendant has a right to a jury trial on the recidivism-related factors of service of a prior prison term, commission of the offense while on probation or parole, or unsatisfactory performance on probation or parole. (Towne, supra, 44 Cal.4th at p. 76.) Towne also observed that the United States Supreme Court has not resolved the issue of whether the exception of Almendarez-Torres, supra, 523 U.S. at page 243 for the fact of a prior conviction as an aggravating factor allows for increasing an offender’s sentence on the basis of these factors. (Ibid.) Towne noted, however, that most federal appellate court decisions and a majority of state appellate courts have not limited the exception for prior convictions to the mere fact of a prior conviction. (Towne, supra, at pp. 77-78 and cases cited therein.) Towne stated that “we agree with the majority of state and federal decisions holding that the federal constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstance that a defendant was on probation or parole at the time of the offense or has served a prior prison term.” (Id. at p. 79.) The court concluded that service of a prior prison term and the commission of an offense while on probation or parole are distinguishable from other matters used to enhance punishment. (Id. at p. 80.) These factors are aspects of recidivism, they do not require any factfinding in relation to the commission of the charged offense, and the procedural safeguards that attach to the fact of a prior conviction are carried through to the circumstance of a prior prison term or probation or parole status. (Id. at pp. 80-81.)
In the instant case, as in Towne, appellant’s prior unsatisfactory performance on probation and parole and the fact he was on parole when he committed the instant crime were established by his record of prior convictions, duly considered by the trial court. The existence of these factors is beyond dispute. (See Towne, supra, 44 Cal.4th at p. 82.) In addition appellant admitted to having committed seven prior felonies.
To the extent appellant argues that the California Supreme Court cases, such as Black II and presumably Towne, were wrongly decided, we are obliged to follow those cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 453.) We conclude that appellant’s arguments are without merit, and the trial court properly sentenced him to the upper term.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.