Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles, Robert J. Higa, Judge, Super. Ct. No. VA 087590
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Chung L. Mar, Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
PERREN, J.
In our prior opinion filed March 26, 2007, we remanded the matter for resentencing in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham) and affirmed the judgment in all other respects. Our Supreme Court granted review. On September 12, 2007, it transferred the matter to this court with directions to vacate our prior decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825. As directed, we have reconsidered the matter and reviewed the parties' supplemental briefs on the sentencing issue. We issue a new opinion and affirm.
A jury convicted appellant Isaac King Walker, Jr. of arson of an inhabited structure, in violation of Penal Code section 451, subdivision (b). The trial court found true a prior prison term alleged pursuant to Penal Code section 667.5, subdivision (b).
Walker was sentenced to the upper term of eight years for arson, plus an additional year for the prior prison term enhancement. On appeal, Walker asserts the trial court erred in imposing the upper term for the arson conviction. We affirm.
FACTS
Walker lived with Marcia Porto in her home in Norwalk since February 2004. When Porto tried to end the relationship several months later, Walker refused to leave. On February 4, 2005, Porto's home was set on fire.
Walker was convicted in a jury trial of arson. His conviction is not disputed. The court sentenced him to the upper term of eight years plus an additional year enhancement for a prior prison term.
DISCUSSION
Walker contends the trial court committed reversible error by relying on aggravating sentencing factors which were not tried by a jury to impose an upper term sentence. In imposing the upper term, the trial court found that Porto was a particularly vulnerable victim, the planning of the crime was sophisticated, Walker's conduct was a serious danger to society, and Walker had been convicted of numerous prior felonies and had served prior prison terms. Walker correctly asserts that these factors were not considered by the jury.
In Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], the United States Supreme Court held that California's determinate sentencing law violated the Sixth Amendment right to a jury trial because it assigned to the trial judge, rather than to the jury, authority to make the factual findings that subject a defendant to the upper term sentence. (Id. at p. 871.) The court explained: "[T]he 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." (Id. at p. 860.)
In Black, our Supreme Court read Cunningham and its predecessors, Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296, to permit imposition of the upper term sentence, even without jury findings, "if one aggravating circumstance has been established in accordance with the constitutional requirements" set forth in Blakely, Apprendi and Cunningham. (Black, supra, 41 Cal.4th 799, 813.) The court held that "imposition of an upper term sentence [does] not violate defendant's right to a jury trial, [where] at least one aggravating circumstance was established by means that satisfy the Sixth Amendment requirements and thus [makes the defendant] eligible for the upper term." (Id. at p. 806.)
Here, the trial court based the upper term sentence in part on Walker's numerous prior felony convictions and prior prison terms. These are facts relating to his criminal history that, consistent with Apprendi and Blakely, may be found by the trial judge without the participation of the jury. (Black, supra, 41 Cal.4th 799, 813.) Imposition of the upper term did not violate Walker's right to trial by jury.
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.