Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. SC145031A
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
Defendant Mark Silk argues his Sixth Amendment rights were violated when the trial court imposed an upper term sentence based on facts that were not alleged in the charging document, admitted by Silk, or found true beyond a reasonable doubt by a jury. His argument is precluded by People v. Black (2007) 41 Cal.4th 799 (Black).
Background
In December 2005, Silk was charged with second degree robbery (Pen. Code, § 211) and it was alleged he had suffered three prior convictions within the meaning of section 667, subdivisions (b) to (e): 1976 second degree robbery, 1981 bank robbery, and a 1992 bank robbery. On July 6, 2006, Silk pled guilty to the robbery charge on the understanding the court would strike two or three of the prior convictions and he would receive a maximum 10-year sentence. He admitted the prior convictions.
At sentencing, the court struck two of the prior convictions and denied probation. It found true the following aggravating circumstances: the crime was carried out in a manner that indicated planning (Cal. Rules of Court, rule 4.421(a)(8) ); Silk’s prior convictions were numerous and “of at least equal, if not increasing, seriousness, and the number of robberies is significant” (rule 4.421(b)(2)); he previously served prison time (rule 4.421(b)(3)); was on federal probation at the time the instant offense was committed (rule 4.421(b)(4)); and his prior performance on probation and parole were poor (rule 4.421(b)(5)). The court identified two mitigating circumstances that might apply: Silk was suffering from a mental or physical condition that greatly reduced his culpability for the crime, namely a 30-year heroin addiction (rule 4.423(a)(4)), and he acknowledged guilt at an early stage of the proceedings (rule 4.423(b)(3)). The court found the aggravating factors outweighed the possible mitigating factors and imposed an upper term of five years for the robbery conviction, doubled to 10 years under the Three Strikes Law.
All further rule references are to the California Rules of Court.
Discussion
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court concluded California’s determinate sentencing law violates the Sixth Amendment because it “allocates to judges sole authority to find facts permitting the imposition of an upper term sentence,” referring to the aggravating factors set forth in rule 4.421. (Cunningham, at p. ___ [127 S.Ct. at p. 870].) In Black, supra, 41 Cal.4th at p. 813, however, our Supreme Court held “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s determinate sentencing law. Therefore, “if one aggravating circumstance has been established in accordance with the constitutional requirements . . ., the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Ibid.)
Black pointed out that the United States Supreme Court “consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. . . . ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ ” (Black, supra, 41 Cal.4th at p. 818 [citations omitted].) Black rejected a narrow interpretation of the recidivism exception and held the exception applies not only to the fact of the prior conviction, but also to “other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) In Black, the defendant's criminal history alone rendered him eligible for the upper term sentence. That aggravating factor “independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence.” (Black, at p. 820.)
Silk acknowledges that four of the aggravating factors relied on by the trial court were recidivist factors under Black. He claims the court’s true findings as to two of those recidivist factors were “problematic[],” but does not challenge the findings as to the other recidivist factors: that he served prior prison terms and performed poorly on parole. Under Black, Sixth Amendment requirements were satisfied because the trial court found true these latter two recidivist factors. (Black, supra, 41 Cal.4th at p. 813.) Although Silk argues Black was wrongly decided, he concedes that we are bound to follow the decisions 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. JONES, P.J., NEEDHAM, J.