Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR909639
NEEDHAM, J.
Appellant Steven Robert Ward pled guilty to possessing methamphetamine for sale under Health and Safety Code section 11378 and admitted a prior drug conviction under section 11370.2, subdivision (c). After he was found ineligible for drug treatment at the California Rehabilitation Center (Welf. & Inst. Code, §§ 3051, 3053), he was returned to court and sentenced to prison for a six-year aggregate term, consisting of the three-year upper term on the possession for sale count plus a three-year enhancement for the prior drug conviction. Appellant contends the upper-term sentence violated his constitutional rights under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), because it was based on facts that were neither admitted by him nor found true by a jury. We reject the claim.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Under the federal Constitution, any factor increasing the penalty for a crime beyond the statutory maximum is akin to an element of the offense and must be submitted to the jury and proved beyond a reasonable doubt. (Blakely v. Washington (2004) 542U.S. 296, 303-304 (Blakely); Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) In Cunningham, the court analyzed California’s determinate sentencing law (DSL) and concluded that under the three-tiered sentencing structure applicable to most offenses, the middle term was the statutory maximum because the upper term could not be imposed absent additional factual findings. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 868, 871]; see also Pen. Code, §1170, subd. (b).) Cunningham held that the DSL ran afoul of the principles set forth in Apprendi and Blakely to the extent it allowed the imposition of an upper term sentence based on aggravating factors that were found true by the trial court using only a preponderance of the evidence standard. (Cunningham, supra, at p. 871, disapproving People v. Black (2005) 35 Cal.4th 1238, judg. vacated and cause remanded sub nom. Black v. California (2007) 127 S.Ct. 1210.)
There are two exceptions to this rule. “First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction.” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Our Supreme Court has concluded that the recidivism exception should not be read too narrowly, and encompasses a finding that prior convictions are numerous and of increasing seriousness. (People v. Black (2007) 41 Cal.4th 799, 818-820 (Black II).)
The prior conviction exception to Apprendi-Blakely-Cunningham was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224, 243, which has yet to be disapproved by the United States Supreme Court.
The probation report in this case revealed that appellant’s criminal history included convictions in nine prior cases: misdemeanor battery in November 1993; misdemeanor spousal abuse in February 1998; misdemeanor battery in May 1998; felony drug possession in July 1998; misdemeanor battery in August 1998; misdemeanor spousal abuse in August 1998; felony drug possession and possession for sale in October 2001; felony drug possession and misdemeanor possession of a syringe in March 2002; and felony possession for sale of drugs and misdemeanor possession of a syringe in August 2003. The trial court indicated at sentencing that it was aware of Cunningham and explained that it was imposing the upper term sentence based solely appellant’s criminal history: “[T]he only aggravating circumstance that the court can properly consider is the prior criminal record . . . this total of nine convictions, four of them for felonies, five for misdemeanors, of the five misdemeanors, all five relate to crimes of violence. Of the four felonies, two of them are identical charges of which he stands convicted here today. [¶] . . . [¶] When you throw all into the balance, the court finds that his prior record is a sufficient circumstance in aggravation standing alone, even when balanced against the early admission of wrongdoing, that the upper term is justified. And any court that is reviewing this should understand that I’m only relying on that one factor in aggravation . . . . [¶] . . . When you’ve got nine convictions of the quality and over the period of time that we have here, that, in the court’s view, just calls for the aggravated term.”
The court’s determination that appellant’s criminal history supported an upper term sentence falls squarely within the recidivism exception to Apprendi-Blakely-Cunningham. Appellant was not entitled to have this issue presented to a jury or found true beyond a reasonable doubt. (Black II, supra, 41 Cal.4th at p. 818.)
Appellant argues that the evidence in this case was insufficient to support the upper term because the only information about his prior convictions was a hearsay recitation in the probation report that did not amount to proof of their “identity and nature” beyond a reasonable doubt. He notes that when determining the “serious” nature of a prior felony conviction for enhancement purposes, the court may look only to the record of conviction in the prior case, which does not include the probation report. (See People v. Trujillo (2006) 40 Cal.4th 165, 180; People v. Guerrero (1988) 44 Cal.3d 343, 352.)
A similar argument was made to the California Supreme Court in Black II, which implicitly rejected the hearsay challenge to the probation report and explicitly rejected the argument that a prior conviction must be proved beyond a reasonable doubt before it can be used to impose the upper term. (Black II, supra, 41 Cal.4th at p. 820, fn. 9.) Moreover, the case law cited by appellant arises from the court’s need to look beyond the statutory elements of a prior offense to determine whether the underlying conduct amounted to a serious felony. (Guerrero, supra, 44 Cal.3d at p. 352.) The court in this case was not looking beyond the statutory elements of the prior convictions; it was enough that appellant had been previously convicted of the crimes listed in the probation report. Appellant did not challenge the accuracy of that report in the trial court and has forfeited any claim that he was not previously convicted of the crimes it listed. (See People v. Phillips (1994) 25 Cal.App.4th 62, 71 [defendant who did not object to recitation of financial circumstances in probation report could not challenge finding that he had the ability to pay restitution].)
One of the prior convictions listed in the probation report, the 2002 conviction for possession of drugs, was the basis for the three-year enhancement under section 11370.2. Appellant argues that the court improperly relied on this conviction to both aggravate his sentence and impose the enhancement, contravening the rule that the upper term may not be based on the same fact as an enhancement. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) He did not raise this issue in the trial court and has forfeited the claim. (People v. Scott (1994) 9 Cal.4th 331, 353.) In any event, given the number of previous offenses, it is not reasonably probable the court would have reached a different result if it had specifically limited its consideration of appellant’s criminal record to the eight remaining prior cases. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
The judgment is affirmed.
We concur. JONES, P. J., SIMONS, J.