Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-451913
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant and appellant Joseph Lee Peck appeals the upper term sentence of three years on his guilty plea conviction for taking a vehicle without the consent of the owner (Vehicle Code, § 10851, subd. (a)) which the trial court imposed following termination of his probation. Defendant contends the upper term sentence is unconstitutional under the rule of Apprendi v. New Jersey and its progeny. We affirm.
Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [“Other 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”].)
Factual & Procedural Background
On October 4, 2004, the owner of a vehicle repair shop in Santa Rosa reported that a vehicle had been stolen from the driveway where it had been parked awaiting transmission work. The owner stated he suspected the vehicle had been taken by a family friend who had been working in the shop but had not reported for work since September 28, 2004. On October 22, 2004, a police patrol officer found defendant asleep in the stolen vehicle. Defendant identified himself, stated that he had taken the vehicle without the owner’s consent, and admitted he was currently on probation in Sonoma County. After defendant was arrested and transported to the police station, he supplied a written statement that he had worked for the owner of the vehicle repair shop, that the vehicle had been brought in for servicing, and that he had decided to take it so that he could drive home.
Subsequently, defendant was charged in a felony complaint filed on October 26, 2004, with one count of taking a vehicle without the consent of the owner (Vehicle Code, § 10851, subd. (a)) and one count of receiving stolen property (Penal Code, § 496d, subd. (a)). On November 3, 2004, defendant entered a plea of guilty as charged on the understanding that the maximum sentence he faced was three years in state prison. The felony presentencing report dated December 7, 2004, reflects that defendant suffered multiple misdemeanor and felony convictions, several revocations of probation, and violated criminal protective orders, all between March 1989 and May 2004. These offenses included a felony domestic violence conviction. (Penal Code, § 273.5, subd. (a).) On December 13, 2004, defendant was placed on formal probation for a period of 36 months.
Defendant’s probation was summarily revoked on August 12, 2005, based on his absconding from probation supervision. Defendant was arrested on April 13, 2006, and on April 17 admitted to violating his probation by failing to maintain contact with the probation office. In the sentencing report filed on May 25, 2006, the probation officer stated that “defendant’s criminal history spans a period of over 17 years, in three different counties, where he served a substantial amount of local custody, which appears to have had no effect on his criminal conduct.” At a sentencing hearing on September 27, 2006, the trial court stated: “For the violation of probation, Mr. Peck, you are committed to the Director of [the] Department of Corrections for the upper term of three years. The reasons why I am imposing the upper term are because, as I’ve indicated in the past, your record includes several felony convictions, misdemeanor and felony. You were actually on a grant of probation when this offense happened in 2004. Your past performance in 2004 was not good. There were no circumstances in mitigation in 2004. While you were on probation, you again violated probation.” Defendant filed a timely notice of appeal on October 13, 2006.
Discussion
Defendant contends the trial court’s imposition of the upper term of three years imprisonment violates the federal Constitution. Defendant notes that in Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856, 868 (Cunningham), the high court held that California’s determinate sentencing system violated the rule of Apprendi “[b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt . . . .” Defendant asserts that under Cunningham, the trial court could not rely upon either the “mere fact of a prior conviction” or his past performance on probation in imposing the upper term.
Defendant’s contention is squarely foreclosed by People v. Black (2007) 41 Cal.4th 799 (Black), in which our Supreme Court re-examined California’s determinate sentencing scheme in light of Cunningham. The court stated that “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.]” (Black, supra, 41 Cal.4th at p. 813, italics added.) Accordingly, the Court reasoned that “if one aggravating circumstance has been established” in compliance with Sixth Amendment standards, then “the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Ibid.) One such aggravating factor present here, as in Black,is “defendant’s criminal history—[which] rendered [him] eligible for the upper term sentence. (§ 1170, subd. (b).) 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. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Black, supra, 41 Cal.4th at p. 818.)
Further, the Supreme Court added that the “prior conviction exception” to the right to a jury trial should be interpreted broadly, to include “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. [Citations.]” (Black, supra, 41 Cal.4th at p. 819.) Accordingly, the Court noted that included within the recidivism exception to the jury trial requirement are the “determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation] . . . .” (Id. at pp. 819-820; see also People v. Yim (2007) 152 Cal.App.4th 366, 371 [holding that the “recidivism related” factors supporting imposition of the upper term sentence—appellant’s status as a parolee and his prior unsatisfactory performance on parole—fell within prior conviction exception to the jury requirement because they “can be determined by reference to ‘court records’ pertaining to appellant’s prior convictions, sentences and paroles”].) Thus, the two recidivist related factors which the trial court relied upon here—defendant’s criminal history and his prior unsatisfactory performance on probation—“independently satisfy Sixth Amendment requirements and render [defendant] eligible for the upper term.” (Black, supra, 41 Cal.4th at p. 820.) Therefore, as in Black, defendant “was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence” of three years for the offense of taking a motor vehicle without consent of the owner. (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Siggins, J.