Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. MA030499, Lisa M. Chung, Judge.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Joseph Eric Senegel was convicted, following a jury trial, of one count of possession of cocaine for sale in violation of Health and Safety Code section 11351.5 and one count of resisting executive officers in the performance of their duties in violation of Penal Code section 69. The trial court sentenced appellant to the upper term of five years in state prison for the cocaine conviction and to a concurrent two-year term for the Penal Code section 69 conviction.
Appellant appealed from the judgment of conviction, contending that there is insufficient evidence to support his conviction for possession of cocaine for sale, and further contending that the trial court's imposition of the upper term violated his Sixth Amendment right to a jury trial. We affirmed the judgment of conviction.
Appellant filed a petition for review with the California Supreme Court, which was denied on August 16, 2006. Appellant then filed a petition for writ of certiorari with the United States Supreme Court. The court granted this petition and, on February 20, 2007, remanded the case to this court for further consideration in light of its opinion in Cunningham v. California (2007) 549 U.S. ___. At our request, the parties submitted letter briefs addressing the effect of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. Appellant maintains his contention that his sentence is constitutionally invalid and further contends that Black is wrongly decided. We affirm the judgment of conviction.
Facts
On December 8, 2004, Los Angeles County Deputy Sheriff Paul Zarris and partner Deputy Robinson stopped their car and approached appellant, who was standing next to a parked car, to question him. Deputy Zarris noticed a strong odor of marijuana, conducted a pat-down search of appellant, and recovered a pill bottle containing a substance later determined to be rock cocaine.
Deputy Zarris handcuffed appellant and began to walk him to the patrol car. Appellant broke free, kicked Deputy Zarris in the stomach, and began running away. The deputies followed appellant and eventually recaptured him.
Los Angeles County Deputy Sheriff Kerry Levenson testified as a narcotics expert and opined that appellant possessed the cocaine for purposes of sale.
Discussion
In Cunningham, supra, the U.S. Supreme Court held that California's procedure for selecting an upper term violated a defendant's Sixth and Fourteenth Amendment rights to jury trial because it gave the judge, not the jury, the authority to find facts that exposed a defendant to an elevated upper term sentence. The court explained that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].)
The California Supreme Court has explained the application of Cunningham to California's sentencing law: "Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California's current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court's exercise of its discretion in selecting the appropriate term from among those authorized for the defendant's offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (People v. Black, supra, 41 Cal.4th at pp. 815-816.)
Here the trial court sentenced appellant to the upper term because he was on probation at the time of the present offense and committed a violence-related offense as a juvenile, and because he could have been sentenced consecutively on the other count in this case but was not. The court found no factors in mitigation.
Even assuming that the first two factors given by the court were improper under Cunningham, the third was not. Appellant was convicted by a jury of the second count in this case, resisting arrest. That fact rendered him eligible for consecutive sentences. The fact that a defendant could have been sentenced consecutively, but was not, is a recognized aggravating factor under California law. (Cal. Rules of Court, rule 4.421(a)(7).)
The decision to sentence consecutively need not be based on facts found true by a jury. A jury's verdict finding the defendant guilty of two or more crimes authorizes a consecutive sentence. (People v. Black, supra, 41 Cal.4th at pp. 820-821.) Factual findings are not required under California law to support the imposition of consecutive sentences, and the trial court may consider the relationship between the two crimes and any circumstance in aggravation or mitigation. (Id. at pp. 822-823.) Appellant's juvenile record or probation status would qualify as a reason for consecutive sentences.
To preserve all his claims, appellant contends that the California Supreme Court erred in holding in Black that one constitutionally valid aggravating factor is sufficient to support the upper term under Cunningham. Appellant contends that Cunningham requires that all aggravating facts relied on by the trial court be found true by a jury, with the exception of the fact of a prior conviction. He further contends that the single factor rule violates California's Determinate Sentencing Law at the time he was sentenced. Appellant also contends that the court in Black reads the prior conviction exception too broadly. We are bound by the decision of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.