Opinion
APPEAL from the Superior Court of Riverside County No. RIF123516, Robert George Spitzer, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Lynne McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Defendant and appellant Mark Clifford Rhodes challenges the sentence for his assault with a deadly weapon conviction because the trial court imposed the upper term based on facts not found by the jury. Following precedent set by our California Supreme Court, we affirm the aggravated sentence because it is based on defendant’s recidivism.
Facts and Procedure
On the evening of May 6, 2005, defendant was washing the windows of cars at a gas station for spare change. Defendant’s friend worked as a cashier at the gas station and had given him permission to do so. Two friends of the cashier, including the victim, Mr. Fisher, stood next to the cashier’s window at the gas station, talking and smoking with the cashier. Defendant came up behind Mr. Fisher and stabbed him in the back. As he walked away quickly, defendant put away what Mr. Fisher believed was a folding knife, and said something like, “You lucky white mother fuckers, you get everything in life.” Mr. Fisher suffered a three-inch-long stab wound.
While defendant was in jail awaiting trial for stabbing Mr. Fisher, defendant’s bunkmate accused him of slashing him across the stomach with a sharp reflective object. The object was never found. Defendant was charged with assault with a deadly weapon for this incident, but the same jury found him not guilty.
On May 5, 2006, a jury found defendant guilty of assault with a deadly weapon, a knife, and by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The jury also found true the allegation that defendant personally caused great bodily injury. (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) On May 30, 2006, the trial court sentenced defendant to the aggravated term of four years, plus three consecutive years for the enhancement. This appeal followed.
Discussion
Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), defendant argues that imposing the upper term on the aggravated assault charge violated his federal constitutional rights to a jury trial and due process because the findings in aggravation were made by the trial court and not by a jury.
The trial court imposed the upper term sentence of four years on defendant’s conviction for assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). In doing so, the trial court relied on the “circumstances in aggravation” that defendant had a substantial prior criminal history of both felonies and misdemeanors, that he was on probation at the time of the offense, and that prior efforts to achieve his rehabilitation had been unsuccessful.
Defendant has an exceptionally long and varied history of convictions spanning 38 years and six states.
Cunningham held that California’s determinate sentencing law violates Apprendi’s bright-line rule that any fact that increases the penalty for a crime beyond the statutory maximum must be proved beyond a reasonable doubt to a jury. (Cunningham, supra, 127 S.Ct. at p. 868.) However, Cunningham reaffirms that a prior conviction can increase the sentencing penalty. (Ibid. [“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 . . . .’”].) Prior convictions are traditional sentencing factors used by a judge and need not be submitted to a jury to support a sentence. (United States v. Booker (2005) 543 U.S. 220, 244.)
This exception for prior convictions to the requirement that a jury must determine the truth of sentencing factors beyond a reasonable doubt is known as the “Almendarez-Torres exception.” The rationale for this exception is “(1) recidivism traditionally has been used by sentencing courts to increase the length of an offender’s sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial protections.” (People v. McGee (2006) 38 Cal.4th 682, 698, citing Apprendi, supra, 530 U.S. at pp. 487-488; Jones v. United States (1999) 526 U.S. 227; and Almendarez-Torres, supra, 523 U.S. 224.)
Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).
“[T]he finding of even one factor in aggravation is sufficient to justify the upper term. [Citation.]” (People v. Steele (2000) 83 Cal.App.4th 212, 226.) Here, the trial court found that defendant had a substantial prior criminal history, that he was on probation at the time of the offense, and that prior efforts to achieve his rehabilitation had not been successful. The fact that a defendant suffered a prior conviction is sufficient to support the imposition of the maximum penalty in a sentencing range. (Jones v. United States, supra, 526 U.S. at pp. 248-249.)
“‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Apprendi, supra, 530 U.S. at p. 488.) In addition, our California Supreme Court has concluded that the Almendarez-Torres exception covers not only the bare fact of the prior conviction, but the nature of the conviction and questions related to recidivism in general. (People v. McGee, supra, 38 Cal.4th at p. 704.) This decision is directly on point, and we are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, defendant’s attack on the upper term lacks merit because imposition of the maximum term is traditionally allowed where a defendant has sustained a prior conviction.
Disposition
The judgment of conviction and the sentence imposed are affirmed.
We concur: Hollenhorst, Acting P.J. Richli, J.