Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Del Norte County Super. Ct. No. CRPB04-5192.
Opinion following remand from Supreme Court
SIMONS, J.
Michael Roberts appeals his conviction by jury trial of resisting an executive officer (Pen. Code, § 69). In our original unpublished opinion, filed on April 30, 2007, we affirmed defendant’s conviction, but reversed the upper term sentence based on our interpretation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). On September 12, 2007, the California Supreme Court granted respondent’s petition for review and transferred the case to us for consideration in light of People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In light of those cases, we affirm the imposition of appellant’s upper term sentence.
Discussion
The trial court imposed the aggravated term after balancing three aggravating factors against one mitigating factor. In aggravation, the court found the following factors: (1) defendant has engaged in violent conduct indicating a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)); (2) his prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness (rule 4.421(b)(2)); and (3) he has served a prior prison term (rule 4.421(b)(3)). Against these aggravating factors, the court stated “[i]n mitigation under rule [4.423], it was a somewhat unusual circumstance in that he was receiving medical treatment at the time and . . . apparently did want to speak . . . further to a doctor . . . .” Appellant contends the upper term sentence must be reversed because it was based on facts not admitted by him or found true by the jury.
All rule references are to the California Rules of Court.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court applied the Sixth Amendment and held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, supra, 127 S.Ct. at p. 871, the high court held that California’s determinate sentencing law violated a defendant’s federal right to trial because it assigned to the trial judge, not the jury, the authority to make factual findings that subject the defendant to the possibility of an upper term.
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the [statutory] maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (Sandoval, supra, 41 Cal.4th at pp. 836-837.) Black construed the Apprendi prior conviction exception 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.” (Black, supra, 41 Cal.4th at p. 819.) Moreover, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional [factfinding] engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (Black, supra, 41 Cal.4th at p. 813.)
Here, the trial court properly relied on two aggravating circumstances that entitled the court to impose the upper term sentence: (1) appellant has a prior prison conviction (rule 4.421(b)(3)); and, (2) his prior convictions are numerous and of increasing seriousness (rule 4.421(b)(2)), a factor specifically approved in Black. (Black, supra, 41 Cal.4th at p. 818.) Appellant appears to recognize that Black and Sandoval compel this result, and that we must adhere to these decisions by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Because at least one aggravating circumstance was established by means that independently satisfied the requirements of the Sixth Amendment and rendered appellant eligible for the upper term, we conclude the court properly sentenced him to the upper term.
In all other respects, our decision filed on April 30, 2007, remains in effect.
Disposition
The judgment of conviction is affirmed.
We concur. JONES, P.J., BRUINIERS, J.
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.