Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. BF06901943-1 Robert H. Oliver, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Kair Yoon Saephan contends that his upper term sentence violates his constitutional rights as set forth in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] because the trial court relied upon juvenile convictions in selecting the upper term and there was no jury trial on the aggravating factors. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
A jury convicted Saephan of one count of unlawful driving or taking of a vehicle and one count of evading a police officer. Two Penal Code section 667.5, subdivision (b) enhancements were admitted by Saephan. As set forth in the information, Saephan’s prior felony convictions were for burglary in 2000 and for driving with willful and wanton disregard for safety while fleeing from officers in 2003.
At the sentencing hearing, the trial court imposed the upper term. In imposing the upper term, the trial court noted that Saephan had prior convictions, both as an adult and a juvenile, had served a prior prison term, and was on probation or parole when the offenses were committed.
DISCUSSION
In Blakely v. Washington (2004) 542 U.S. 296, 301, the United States Supreme Court held that 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 or admitted by the defendant. Recently, in Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court clarified that “In accord with Blakely … the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.]” (Id. at p. ___ [127 S.Ct. at p. 868].) An upper term constitutionally may be imposed if it is based upon facts admitted by the defendant, facts reflected in the jury’s verdict, or a prior conviction. (Blakely, at p. 303.)
In imposing the upper term here, the trial court cited Saephan’s prior criminal record. Saephan admitted to suffering two prior convictions, including a conviction for burglary. In addition, Saephan had served prior prison terms and was on parole when the offenses were committed. The upper term imposed by the trial court was based upon facts admitted by Saephan and his record of prior convictions. Therefore, under the holdings of both Blakely and Cunningham, imposition of the upper term did not violate Saephan’s constitutional right to a trial by jury.
Saephan also contends that imposition of the upper term was error because the trial court relied on juvenile adjudications in imposing the upper term. Although the trial court mentioned Saephan’s prior juvenile record, the trial court also referred to the two adult convictions, the prior prison terms served on the adult convictions, and Saephan’s being on parole from an adult conviction at the time he committed the current offenses.
A single aggravating factor is sufficient to support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Additionally, “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black (2007) 41 Cal.4th 799, 813.) Saephan’s adult criminal record supports imposition of the upper term, without consideration of any juvenile adjudications.
Furthermore, the weight of authority is that juvenile adjudications have sufficient procedural safeguards to permit a trial court to use them to enhance a defendant’s sentence without violating the defendant’s constitutional rights. (People v. Grayson (2007) 155 Cal.App.4th 1059, 1067-1068; see, e.g., People v. Tu (2007) 154 Cal.App.4th 735, 750; People v. Fowler (1999) 72 Cal.App.4th 581, 585; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1079; United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032; U.S. v. Jones (3rd Cir. 2003) 332 F.3d 688, 696; U.S. v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190.)
The trial court’s imposition of the upper term did not violate Saephan’s constitutional rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, J., DAWSON, J.