Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF019082, F. Paul Dickerson III, Judge.
Thien Huong Tran, 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, Assistant Attorney General, and Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant Rondell Royce Taylor was convicted of attempted voluntary manslaughter and assault with a firearm after shooting and seriously injuring the victim at a high school graduation party.
Defendant makes one contention on appeal: The trial court violated his constitutional rights to trial by jury and federal due process when it imposed the upper terms on the attempted voluntary manslaughter and personal arming enhancement based in part on his prior juvenile adjudications.
We find that there was no error and affirm the judgment..
I PROCEDURAL BACKGROUND
Defendant was found guilty of attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)). The jury also found true the special allegations for both counts that he personally used a firearm during the commission of the crimes and caused great bodily injury to the victim (§§ 1192.7, subd. (c), 12022.5, subd. (a)). Defendant was sentenced to 5 years 6 months on the attempted voluntary manslaughter, plus 10 years for the personal use of a firearm, plus 3 years for the great bodily injury enhancement, for a total of 18 years 6 months in state prison. The remaining sentences were stayed.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury rejected that defendant was guilty of attempted premeditated, deliberate, and malice-aforethought murder.
II FACTUAL BACKGROUND
On June 17, 2006, defendant attended a high school graduation party thrown by Aliva Kemp and her roommates at their residence in Hemet. Although they were not serving alcohol, some of the guests brought their own. Over 100 people showed up to the party. Kemp’s cousin, Roderick Thomas, arrived at the party around 9:00 p.m.
About 9:30 p.m., someone at the party spilled a drink on defendant; he got upset and exchanged words with the person. Kemp told defendant to calm down. About 40 minutes later, defendant got into an altercation with someone else. They were arguing, and Kemp stopped them. Kemp told defendant not to cause any trouble.
Defendant got into a third altercation inside the house after midnight with a person who bumped into him. That person hit defendant. Defendant stumbled toward the front door, stopped in the doorway, and pulled a gun from his waistband. He fired the gun two or three times back toward the person who had hit him. Thomas, who was standing nearby, got shot. Defendant ran out the door and left.
Thomas suffered a gunshot wound to his lower abdomen requiring surgery to reconstruct his bowels. The bullet remained in his body at the time of trial.
Defendant was eventually arrested in Riverside.
III USE OF JUVENILE ADJUDICATIONS TO IMPOSE UPPER TERM IN VIOLATION OF DEFENDANT’S FEDERAL CONSTITUTIONAL RIGHTS
Defendant contends that imposition of the upper term on the attempted voluntary manslaughter and the personal arming enhancement by the trial court in reliance, in part, on his juvenile adjudications violated his federal constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
We note that defendant never raised this claim in the lower court; he merely requested that the trial court impose the midterm sentence. The People contend that defendant has waived the claim by failing to object. We choose to address defendant’s claim since we conclude that the sentence was proper for reasons not recognized by defendant.
A. Additional Factual Background
At the sentencing hearing on May 9, 2008, the trial court indicated it had read the probation report. According to the probation report, defendant had four prior juvenile adjudications, including misdemeanor and felony dispositions. As an adult, defendant had three misdemeanor convictions and one felony conviction.
Evidence had been presented at trial that on September 28, 2000, when defendant was 15 years old, he was found in possession of a loaded firearm. Further, on October 3, 2001, defendant was found in possession of a firearm.
The trial court noted initially at sentencing, “... I should note that under Senate Bill 40, the Court has unlimited discretion in deciding which of the triad to choose. It has to cite the reasons.” Defendant argued that he should receive the middle term because of the mitigating factors of his young age, his acting in unreasonable self-defense, and the lack of planning or sophistication involved in the crime. The prosecutor asked for the upper term.
The trial court stated before sentencing, “The Court knows under Senate Bill 40, the Court has complete discretion in deciding what will be deemed the appropriate term in state prison.” Defendant was sentenced to the upper term on the attempted voluntary manslaughter because he had been “convicted of four felonies and four misdemeanors in less than ten years, not including the underlying offense.” In addition, the trial court noted, “[n]othing has gotten his attention, and he continues to violate all manner of laws.” The upper term was also necessary to send a message to defendant and protect the community. The trial court imposed the upper term on the personal arming enhancement for the above-mentioned reasons, in addition to the fact he had not successfully completed probation in the past and was on parole at the time he committed the offense.
B. Analysis
In Apprendi, the United States Supreme Court held that, “[o]ther 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.” (Apprendi, supra, 530 U.S. at p. 490.) In Blakely, the high court clarified that, for Apprendi purposes, the prescribed “statutory maximum” is not necessarily the maximum penalty provided by statute for the crime; rather, it 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.” (Blakely, supra, 542 U.S. at p. 303, italics omitted.)
In Cunningham, the high court applied Apprendi and Blakely to California's then existing determinate sentencing law (DSL). (Cunningham, supra, 127 S.Ct. at p. 870.) The Cunningham court found that the former DSL violated a defendant’s Sixth Amendment right to a jury trial because “circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt....” (Cunningham, supra, 127 S.Ct. at p. 868.) The court concluded that the middle term prescribed in the former DSL, not the upper term, was the relevant statutory maximum for Apprendi purposes. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.)
After Cunningham, the Legislature amended the former DSL (§ 1170) by urgency legislation effective March 30, 2007, by way of Senate Bill 40. (Stats. 2007, ch. 3, § 2; see also People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2.) The amended DSL eliminated the middle term as the presumptive term and now allows the trial court to exercise broad discretion in selecting the lower, middle, or upper term based on reasons stated on the record. As amended, section 1170 provides, “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....” (§ 1170, subd. (b).)
Defendant does not recognize in his brief that he was sentenced under the amended DSL, but rather contends that the trial court could not impose an upper term sentence based on his prior juvenile court adjudications because he was entitled to a jury trial (relying on Apprendi) and proof beyond a reasonable doubt on any fact that was used to increase his sentence beyond the statutory maximum. He argues that because there are no jury trials in juvenile court, the trial court could not rely on his juvenile adjudications to enhance his sentence. The People, however, do recognize that defendant was sentenced in accordance with the amended DSL, which provides that the presumptive sentence is the upper term, and no findings of fact are necessary on any factors, including recidivism-based factors. We agree with the People.
Defendant was sentenced on May 9, 2008, after the high court issued its decision in Cunningham and after the Legislature amended the DSL. The amended DSL remedied the constitutional infirmities of the former DSL found in Cunningham. In accordance with the requirements of the amended DSL, defendant was not entitled to a jury trial on any of the factors on which the trial court relied in imposing the upper terms on the attempted voluntary manslaughter and arming enhancement.
The trial court was well aware of the amendments to the DSL that the Legislature had enacted in response to Cunningham. In fact, the trial court stated it was sentencing defendant in accordance with Senate Bill 40. In sentencing defendant to the upper terms on the substantive charge and the personal arming enhancement, the trial court stated its reasons as defendant’s criminal record, his prior performance on probation or parole, and his danger to society. The record supports such a finding. Since defendant was sentenced in accordance with the requirements of section 1170, subdivision (b), his upper term sentences did not violate his right to a jury trial or proof beyond a reasonable doubt under Apprendi, Blakely, or Cunningham. (See People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Defendant was not entitled to a jury trial on any of the factors on which the trial court relied in selecting the upper terms because, at the time he was sentenced, the middle terms were no longer the presumptive terms under the DSL. Therefore, we find there was no error in the trial court’s selection of the upper terms.
Moreover, even if Cunningham had applied to defendant’s sentencing, there would be no error. (People v. Black (2007) 41 Cal.4th 799, 814-816. The California Supreme Court held in Black 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.” (Id. at p. 816.) Recently, in People v. Towne (2008) 44 Cal.4th 63, pages 76 through 81, our Supreme Court examined various recidivism-related factors that permitted trial court’s to impose terms above the statutory maximum. The court held that the Sixth Amendment right to a jury trial does not apply to the factors that the defendant has served a prior prison term, that the defendant was on probation or parole when the crime was committed, or that the defendant had previous unsatisfactory performance on probation or parole. (Id. at pp. 81-82.)
Even assuming that the trial court erred by taking into account defendant’s juvenile adjudications, we conclude that imposition of the upper terms was justified due to his adult prior convictions, his being on parole at the time of the offense, and his prior unsatisfactory performance on probation or parole. Accordingly, we reject that defendant was improperly sentenced.
IV DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.