Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Super Ct. No. F06902197-3, W. Kent Levis, Judge.
Larry L. Dixon, 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 Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., and Levy, J.
A jury convicted appellant Curtis Lee Snowden III of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); count 1), attempted carjacking (§§ 215, subd. (a), 664; count 2), assault with a firearm (§ 245, subd. (a)(2); count 4), and resisting, delaying or obstructing a peace officer (§ 148, subd. (a)(1); count 5), and found true allegations that in committing each of the offenses charged in counts 1, 2 and 4, appellant personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)). The court imposed a prison term of 15 years, consisting of the five-year upper term on the robbery plus 10 years on the accompanying enhancement (§ 12022.53, subd. (b)). On counts 2 and 4, the court imposed concurrent terms of, respectively, 14 years 6 months, consisting of four years six months on the substantive offense and 10 years on the enhancement (§ 12022.53, subd. (b)), and 14 years, consisting of four years on the substantive offense and the upper term of 10 years on the enhancement (§ 12022.5, subd. (a)). The court stayed execution of sentence on counts 2 and 4 pursuant to section 654. On count 5, the court imposed a concurrent term of 180 days, and credited appellant for time served.
All statutory references are to the Penal Code unless otherwise noted.
On appeal, appellant contends the court erred in imposing upper term sentences based on facts that were not found true by a jury beyond a reasonable doubt. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
At approximately 7:00 p.m. on March 28, 2006, Mai Lee returned to her car in a shopping mall parking lot and got in, at which point appellant approached, tapped the window of the car with a gun, and ordered Lee to open the car door. Lee complied, and thereafter appellant demanded money; held the gun approximately three to four inches from Lee’s head, pointed the gun at her; demanded Lee’s wallet; grabbed the wallet; told her, “I’m going to have to take you now” and “I’m going to have to do you right here”; violently pushed the gun against Lee’s head; and told her to “[m]ove the fuck over.” Lee climbed over the gear shift, into the passenger seat, and appellant got in the car and sat in the driver’s seat. At that point, Lee jumped out of the car and, screaming for help, ran towards another car that had just pulled into a parking place.
At that point, two police officers who were patrolling the parking lot heard Lee’s screams and came to her aid. Police officers apprehended appellant shortly thereafter.
Prior Record
Appellant suffered juvenile adjudications of the following offenses: misdemeanor second degree burglary (§§ 459, 460, subd. (b)), in February 2002; felony vehicle theft (Veh. Code, § 10851, subd. (a)), in June 2002; resisting, delaying or obstructing a peace officer (§ 148, subd. (a)), a misdemeanor, in September 2003; receiving a stolen motor vehicle (§ 496d, subd. (a)), a felony, in December 2003; and felony unlawful intercourse with a minor more than three years younger than the perpetrator (§ 261.5, subd. (c)), in July 2004. He had suffered no prior adult convictions.
Sentencing
In sentencing appellant, the court found as factors in aggravation the following: appellant’s “prior criminal record”; his “prior conduct”; appellant was on California Youth Authority parole at the time of the instant offenses; and those offenses were “[fraught] with violence ….”
In what we presume is a transcription error, the reporter’s transcript indicates the court stated, “It was an offense which was brought with violence.” (Italics added.)
DISCUSSION
As indicated above, appellant contends the trial court violated his jury trial rights by imposing the upper term based on facts not found by a jury beyond a reasonable doubt. We disagree.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held, “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.” (Id. at p. 490.) The high court reaffirmed this rule in Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely) and later in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). And in Cunningham the Supreme Court also held that the version of California’s determinate sentencing law then in effect violated the Sixth Amendment to the United States Constitution because it “authorizes the judge, not the jury, to find the facts permitting an upper term sentence ….” (Id. at p. 871.)
Subsequently, the California Supreme Court, in People v. Black (2007) 41 Cal.4th 799 (Black II), held that the prior conviction exception to the general rule requiring jury determination of aggravating sentencing factors (prior conviction exception) applies not only to the fact that a conviction occurred, but also to determinations that a defendant has suffered numerous prior convictions of increasing seriousness. (Id. at pp. 819-820.) The Black II court also held the existence of even one aggravating factor, properly found in accordance with Cunningham and its antecedents, is sufficient to make a defendant constitutionally eligible for an upper term sentence. (Id. at p. 813.) In such a case, the court, in its exercise of sentencing discretion, may rely upon other factors not so determined. (Ibid.) The imposition of an upper term under those circumstances does not violate the defendant’s constitutional right to trial by jury. (Id. at p. 816.)
As indicated above, the aggravating factors found by the court in the instant case included appellant’s “prior criminal record.” It is not clear whether the court was referring here to the fact of appellant’s prior juvenile adjudications or to the fact that he suffered multiple adjudications. In either case, however, the court relied on at least one factor coming within the prior conviction exception. (U.S. v. Jones (3d Cir. 2003) 332 F.3d 688, 696 [prior juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for purposes of prior conviction exception]; U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1033 [same]; contra, U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194 .) Therefore, under Black II, imposition of the upper terms did not violate appellant’s right to trial by jury, regardless of the other aggravating factors found by the court.
The issue of whether a prior juvenile adjudication comes within the prior conviction exception is pending before the California Supreme Court in People v. Tu, review granted December 12, 2007, A105905.
Clearly, the violence of the instant offense, cited by the court as an aggravating factor, fell outside the prior conviction exception. We offer no opinion as to whether any of the other circumstances in aggravation found by the court fell outside that exception.
Appellant argues that Black II was wrongly decided. However, as appellant acknowledges, we are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.