Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed, Super. Ct. No. 06HF1080
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Randall D. Einhorn, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Christopher Szabo appeals from the judgment sending him to prison for nine years after he violated his probation following his guilty plea to possessing methamphetamine and his admission that he had served six separate prior prison terms. (See § 667.5, subd. (b); Health & Saf. Code, § 11377, subd. (a).) He appeals on the basis that his prison sentence, formulated under California’s determinate sentencing law (DSL), was in violation of the Sixth Amendment because the DSL granted authority to trial judges, instead of juries, to make factual findings and then impose the upper term in prison. (See Cunningham v. California (2007) 549 U.S. __, __ [127 S.Ct. 856, 860].) This conclusion was in conflict with the California Supreme Court’s holding in People v. Black (2005) 35 Cal.4th 1238 (Black I). We are now asked to review the instant case in light of those decisions and the more recent opinions of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.
Szabo entered his plea with the understanding that he would be granted the opportunity of a noncustodial disposition pursuant to Penal Code section 1210.
FACTS
The Original Offense
In June 2006, Szabo pleaded guilty to one count of possession of methamphetamine for personal use (Health & Saf. Code, § 11377 subd. (a)) and a misdemeanor charge of unauthorized possession of a hypodermic needle (Bus. & Prof. Code, § 4140). Szabo also admitted that he had served six prior prison terms. During the hearing in which he changed his plea, the court informed Szabo that he faced a maximum penalty of nine years in prison. Moreover, Szabo signed a Tahl form that clearly showed this same maximum penalty of three years for the underlying offense and one year for each of the six prior prison terms. However, the court granted Szabo’s requested deferred entry of judgment, ordered him to probation and gave him the opportunity to obtain treatment and a noncustodial set of conditions.
See In re Tahl (1969) 1 Cal.3d 122.
The Probation Violation
Six days after being granted probation, Szabo was found lying face down in a pickup truck, in company with a female friend, with a hypodermic syringe in his pocket. The truck was then searched by the deputy sheriff who found two stolen credit card checks. Szabo was arrested and taken into custody for booking. He was given an opportunity to make a phone call which a deputy sheriff overheard. During this telephone conversation, Szabo said that he was “being arrested for two credit card checks.” However, the deputy had not disclosed to Szabo that the checks he had found in the truck were in fact credit card checks.
Imposition of Judgment
After the trial court found Szabo had violated his probation, it sentenced him to prison for “the aggravated term, stating the following reasons: ¶ The defendant’s prior convictions as an adult are numerous and/or of increasing seriousness; ¶ The defendant has served a prior prison term, and the fact this defendant was on parole when he committed the crime that is the subject of this violation. ¶ The court selects the aggravated three years in state prison.”
DISCUSSION
Szabo appeals from the imposition of the aggravated term sentence, contending he was denied the right to have a jury find any fact essential for the imposition of time in prison. (Cf. Cunningham v. California, supra, 549 U.S. at p. __ [87 S.Ct. at p. 824].) In its initial response, the Attorney General argues the issue was waived by Szabo’s failure to raise it below. However, this very position was rejected in Black II, supra, 41 Cal.4th at pages 810-812, and we are bound by this determination. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
On its merits, the issue fails because Cunningham explicitly excepted matters involving the defendant’s prior convictions or criminal history. Such facts have historically, traditionally and statutorily been confined to judicial decisions for a variety of reasons. Thus, aggravating factors involving them can only be decided by jurists, and thus, upper terms may constitutionally be imposed for those reasons by the sentencing court. (See Black II, supra, 41 Cal.4th at p. 818; Blakely v. Washington (2004) 542 U.S. 296, 301; see Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-244.) Moreover, a defendant can admit those facts triggering the aggravation, thus bypassing the requirement that a jury render the decision as to each fact used to impose prison time. (People v. Sandoval, supra, 41 Cal.4th at p. 836; Blakely, supra, 542 U.S. at p. 303.) In this instance, both these exceptions apply, permitting the trial court to impose the upper term without first submitting the issue of Szabo’s criminal history to a jury for a determination.
A court need rely on only one aggravating circumstance to impose an upper term sentence. (Black II, supra, 41 Cal.4th at p. 813.) In the instant case, the trial court made reference to three inter-related aggravating factors. The court found that Szabo’s prior convictions were “numerous” and were of “increasing seriousness.” Further, the court stated on the record that Szabo was on parole at the time of the violation and that he had served prior prison terms. The latter point has been specifically included within the penumbra of recidivism issues outside the mandate of a jury finding. (See Black II, supra, 41 Cal.4th at p. 819; see also People v. Thomas (2001) 91 Cal.App.4th 212, 215; People v. McGee (2006) 38 Cal.4th 682, 700-703.)
Each circumstance voiced by the sentencing court in selecting the upper term fell within the broad issue of recidivism. First, Szabo’s prior convictions have increased in both severity and number. Second, he committed the underlying violation while on parole for a prior conviction and immediately after receiving his latest grant of probation. Finally, he admitted he had already served six prior prison terms. Clearly, Szabo was not entitled to the middle term with this criminal history, and the sentencing court was entitled to choose the upper term because of it.
Double Jeopardy
Szabo contends that the prosecution is barred from retrying the issue of aggravating facts before a jury. Because we hold that the trial court validly imposed the upper term sentence based upon Szabo’s record of recidivism we need not reach the double jeopardy question.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., FYBEL, J.
All further statutory references will be to the Penal Code unless otherwise stated.