Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Madera County, No. MCR028180. Edward P. Moffat, II, Judge.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
OPINION
Defendant Andrew Joseph Sandoval received the upper term of six years for first degree burglary. He argues that this sentence violates his Sixth Amendment right to trial by jury as interpreted in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
Sandoval broke into an apartment and took a PlayStation machine and some video games. A child who lived in the apartment woke up and saw Sandoval, recognizing him as the father of a friend of one of her brothers. While a police officer was at the apartment investigating, Sandoval’s stepson appeared there with a box containing the Play Station and games that had just been taken. The stepson said he got the items from his mother, who got them from Sandoval. The officer went to Sandoval’s apartment and Sandoval fled through the back door. The officer apprehended him in a neighboring apartment. Sandoval told the officer the burglar was a Mr. Simon, whom Sandoval had unsuccessfully tried to persuade not to break into the apartment. The officer located Mr. Simon, who denied involvement.
The district attorney filed an information charging Sandoval with burglary of an inhabited dwelling (Pen. Code, § 459). The information also alleged that at the time of the offense, Sandoval was released on bail or on his own recognizance in two other cases.
Subsequent statutory references are to the Penal Code unless stated otherwise.
The jury found Sandoval guilty of burglary and found true the allegation that the dwelling was occupied at the time of the offense. In a bifurcated proceeding, Sandoval admitted that he was on bail or his own recognizance at the time of the offense.
The court imposed the upper term of six years for burglary in the first degree. It imposed two additional years for each of the on-bail findings, stayed pending resolution of the two cases for which Sandoval had been on bail.
DISCUSSION
When it chose to impose the upper term, the trial court relied on aggravating factors—namely, Sandoval’s prior criminal record—that were not admitted by Sandoval or proved to the jury beyond a reasonable doubt. Defendant argues that this violated his Sixth Amendment right to trial by jury as interpreted in Blakely and Cunningham. Our Supreme Court’s application of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II) is dispositive of this issue and requires affirmance of the sentence.
In Blakely, the United States Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with “‘deliberate cruelty’” and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in 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.’” (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the state’s sentencing law did not allow the sentence to exceed 53 months without judicial factfinding. “Our precedents make clear … that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Id. at p. 303.) The court continued:
“In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.” (Blakely, supra, 542 U.S. at pp. 303-304 .)
On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. 270 [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law as it stood then was erroneous, therefore, unless it was supported by prior convictions, facts found by the jury, or facts admitted by the defendant.
It has since been amended in response to Cunningham. (Stats. 2007, ch. 3 [Sen. Bill No. 40]; see Black II, supra, 41 Cal.4th at p. 808, fn. 2.)
Subsequently, the California Supreme Court issued its decision in Black II. It held that the upper term imposed in that case was not erroneous under Cunningham because it was authorized by the defendant’s prior offenses and the jury’s finding that the defendant committed the offense by means of force and fear. (Black II, supra, 41 Cal.4th at pp. 816-817, 818.) Whether the trial judge would have imposed the upper term based on one of these factors alone was irrelevant; the question was only whether it could have done so under the sentencing law. It could: California’s determinate sentencing law allowed the trial court to impose the upper term based on a single aggravating factor. Each of these two factors authorized the upper term independently under California law, and each was independently established by means consistent with the Sixth Amendment as interpreted in Blakely and Cunningham. The presence of either one alone would have been sufficient to render the upper term constitutional. (Black II, supra, at pp. 813, 814-815, 820.)
Further, where a factor properly established under the Sixth Amendment is present, the court’s reliance on other factors that would not satisfy the Sixth Amendment on their own does not undermine the sentence:
“[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
In this case, the court recited the following factors in support of its decision to impose the upper term:
“As to Count 1, the felony violation of section 459 of the Penal Code, first degree burglary, the Court’s looked at the circumstances in aggravation and mitigation. He did complete a parole term successfully in September 2006. His aggravating factors are such as to, you know, with prior prison terms, numerous convictions, prior performance on probation being unsatisfactory. All of those factors, even not taking into consideration the serious danger ones that which may be a Cunningham issue, the circumstances in aggravation are greatly greater—are greater than any in mitigation.
“The Court’s going to find the appropriate sentence to be six years state prison, the aggravated term .…”
The probation report, which the judge read and considered, listed two prior felony convictions and six prior misdemeanor convictions. The felonies were willful inflictions of corporal injury on a spouse or cohabitant resulting in a traumatic condition (§ 273.5, subd. (a)) committed in 2002 and 2003. The misdemeanors, spanning a period from 1997 to 2002, were possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)); driving without a license (Veh. Code, § 12500, subd. (a)); battery inflicting serious bodily injury (§ 243, subd. (d)); burglary (§ 459); false imprisonment (§ 236); and battery of a spouse or cohabitant (§ 243, subd. (e)(1)).
In light of all this, we conclude that there was no constitutional error in the imposition of the upper term in the present case. The court expressly relied on Sandoval’s prior convictions. His record of prior convictions was more than sufficient under Black II to support the imposition of the upper term without any additional findings by the jury. That the court mentioned prior prison terms, the numerosity of Sandoval’s prior convictions, and his unsatisfactory performance on probation does not vitiate the sentence. (See People v. Towne (2008) 44 Cal.4th 63 [78 Cal.Rptr.3d 530, 537-538, 542-543] [prior prison terms and numerosity of prior convictions fall into exception for prior convictions; sometimes unsatisfactory performance on probation or parole must be found by jury, but it is unnecessary to decide whether it must where court also relied on prior convictions]; Black II, supra, 41 Cal.4th at p. 813.) Sandoval acknowledges that Black II binds this court and requires affirmance; he challenges his sentence on Blakely/Cunningham grounds in this court only to preserve his arguments for subsequent review.
Sandoval also argues that if the court intended to sentence him under the amended sentencing law known as Senate Bill 40 (Stats. 2007, ch. 3), then the sentence violated the ex post facto and equal protection clauses of the federal Constitution. The court did not, however, rely on the amended law. It did not need to do so. The sentence was proper under the former law as interpreted in Black II.
DISPOSITION
The judgment is affirmed.