Opinion
F051537
6-1-2007
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
It is ordered that the opinion filed herein on May 10, 2007, be modified as follows:
The following paragraphs are added immediately after the first full paragraph on page 11 and before the heading, " DISPOSITION " on page 11:
Imposition of Upper Term of Imprisonment
Because (1) the court imposed an upper term sentence based on factors in aggravation found not by the jury but by the court, and (2) after briefing was completed in the instant case, the United States Supreme Court decided Cunningham v. California (2007) 549 U.S. ___ (Cunningham), the latest in a line of cases dealing with the issue of whether the imposition of an upper term based on circumstances in aggravation not found by a jury beyond a reasonable doubt violates a defendants constitutional right to trial by jury, we deem it appropriate to address that issue.
The Honorable Louis Bissig, judge of the superior court, conducted a sentencing hearing on September 28, 2006, and imposed the three-year upper term of imprisonment on count II (possession of methamphetamine). In imposing the upper term, Judge Bissig observed:
"Regarding the sentencing choices on the felony charge, the Court notes that the amount of contraband was small, that is not the focus. In this case the far more considerations are the defendants record. He has an extensive record, including violence, history of probation violation, and history of prior prison commitment."
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court held: "`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." (Id. at p. 301, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) In Cunningham, the Supreme Court held: "Under Californias DSL [Determinate Sentencing Law], an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. [Citation.] ... Because 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, [citation], the DSL violates [the] ... bright-line rule [announced in Apprendi]: Except for 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. [Citation.]" (Cunningham, supra, 549 U.S. ___ .)
The "[o]ther than the fact of a prior conviction" language of Apprendi, supra, 530 U.S. at page 490, refers broadly to recidivism enhancements which include prior prison term allegations (Pen. Code, § 667.5). (People v. Thomas (2001) 91 Cal.App.4th 212, 221-223.) In the instant case, Judge Bissig cited appellants "history of prior prison commitment" as a circumstance in aggravation. Under well-settled California law, only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) In our view, Judge Bissigs statement of reasons satisfied the requirements of Cunningham and no error occurred. Even assuming arguendo error, such error was harmless under both Chapman v. California (1967) 386 U.S. 18 (harmless beyond a reasonable doubt) or People v. Watson (1956) 46 Cal.2d 818 (reasonable probability error did not impact outcome).
Except for the modifications set forth, the opinion previously filed remains unchanged.
This modification does not effect a change in judgment.
The petition for rehearing filed by appellant is denied.
We Concur:
VARTABEDIAN, Acting P. J.
LEVY, J.