Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm, Jr., Judge, Los Angeles County Super. Ct. No. BA299034
Jonathan B. Steiner and Ronnie Duberstein, under appointments by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan S. Pithey and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Arthur Watson appeals from the judgment entered following an order revoking probation and sentencing him to prison for the upper term of three years. Previously, he pled no contest to one count of possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Imposition of sentence was suspended, and he was placed on formal probation pursuant to the provisions of Penal Code section 1210.1. He contends the trial court’s imposition of the upper term violated his federal constitutional rights to a jury trial, proof beyond a reasonable doubt and due process. For reasons stated in the opinion, we affirm the judgment.
The facts relative to his conviction for possessing methamphetamine are taken from the early disposition probation report. It states that on March 2, 2006, a uniformed security official observed appellant in the area of Highland Avenue and Hollywood Boulevard with a glass narcotics pipe in his hand. Appellant was arrested after a baggie of methamphetamine was found in his pocket.
The parties refer to this as Proposition 36 probation.
FACTUAL AND PROCEDURAL SUMMARY
Following a contested hearing, the court found appellant in violation of the terms of his probation requiring him to obey all laws and to report to his probation officer. The court stated it was sentencing appellant to the upper term of three years because of his numerous prior convictions and the fact that he served a prior prison term.
The evidence at the probation violation hearing established that on April 5, 2006 at approximately 8:20 a.m., L. was at a bus stop on south Broadway in Los Angeles when appellant touched her on her “private parts” with two fingers. She screamed and went for help. On April 21, 2006, at approximately 2:30 p.m. in the vicinity of Seventh and Main Streets in Los Angeles, O. was shopping with her daughter and grandson when appellant “yanked” bags from her and “touched her breast.” Deputy Probation Officer David Dietzel testified that he was appellant’s assigned probation officer, and appellant failed to report to him on March 6, 2006.
The court noted it had reviewed and considered the probation officer’s early disposition report, which indicated: Appellant had several outstanding traffic warrants on which he failed to appear. On August 5, 1987, he was convicted of unlawful possession of a controlled substance, a felony (Health & Saf. Code, § 11350, subd. (a)) and placed on three years’ formal probation. On February 11, 1988, he was convicted of false imprisonment (Pen. Code, § 236) and sentenced to prison for 16 months. On April 14, 1989, he was convicted of loitering on private property, a misdemeanor. (Pen. Code, § 647, subd. (g).) On June 24, 1996, he was convicted of begging, a misdemeanor (Pen. Code, § 647, subd. (c)), and sentenced to jail for five days. On August 1, 1996, he was again convicted of begging, a misdemeanor, and given 21 days in jail. On October 9, 1996, he was convicted of intentional interference with public transportation (Pen. Code, § 602.1, subd. (a)) and sentenced to 30 days in jail. On November 13, 1996, he was convicted of unlawful possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and sentenced to prison for 16 months. On December 18, 2002, he was convicted of drinking in public in violation of a Santa Monica Municipal Code. On January 23, 2003, he was convicted of failing to register as a sex offender (Pen. Code, § 290, subd. (a)) and sentenced to one year in jail. On June 2, 2003, he was convicted of misdemeanor battery (Pen. Code, § 242) and sentenced to 30 days in jail. On August 26, 2005, he was again convicted of misdemeanor battery and sentenced to jail for 90 days.
DISCUSSION
Appellant contends the imposition of the upper term violated his federal constitutional rights to a jury trial, proof beyond a reasonable doubt and due process. He notes that when he pled no contest to the offense of possessing a controlled substance, he did not admit any prior conviction or other “prior allegations.” Respondent asserts appellant forfeited his claim by failing to object at trial.
At the time of the sentencing hearing in this case, August 9, 2006, the California Supreme Court had already decided People v. Black (2005) 35 Cal.4th 1238. In light of Black, it would have been futile for appellant to object on the grounds that the jury, rather than the trial court, must find aggravating facts and that those facts must be found beyond a reasonable doubt. Appellant has not forfeited his claim. (People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [2007 WL 2050897; 2007 Daily Journal D.A.R. 11051].)
In Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856], the United States Supreme Court concluded California’s determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and the Sixth Amendment. It also, however, reiterated that the fact of a prior conviction need not be submitted to a jury. (See Cunningham v. California, supra, 549 U.S. ___; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.]” (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 WL 2050875; 2007 Daily Journal D.A.R. 11041, 11047.) The prior conviction exception to the Apprendirule has been construed broadly to apply to factors based on a defendant’s recidivism. (See People v. Black, supra, ___ Cal.4th ___ [D.A.R. at p.11048]; People v. McGee (2006) 38 Cal.4th 682, 704; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.) Here, the trial court’s reliance on recidivism factors, viz., that appellant had numerous prior convictions and had served a prior prison term, permitted the upper term sentence.
Appellant’s claim that that the Federal Due Process Clause requires that a prior conviction be proved beyond a reasonable doubt was rejected in People v. Black, supra, ___ Cal.4th ___ [D.A.R. at p.11049, fn. 9].)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.
In defense, appellant denied he touched L. or O. He admitted he did not report to his probation officer because “it slipped [his] mind.”