Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR060650
GEMELLO, J.
Defendant Michael Alan Wiles appeals from a seven-year sentence imposed by the trial court following a jury trial, contending that imposition of the upper term violated his federal constitutional right to a jury trial. In light of the California Supreme Court’s recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II), we affirm the judgment.
Procedural Background
On March 1, 2006, an information was filed by the Humboldt County District Attorney charging defendant with first-degree burglary (Pen. Code, § 459; count one), two counts of false imprisonment (§ 236; counts two and three), two counts of dissuading a witness by force or threat (§ 136.1, subd. (c)(1); counts four and five), unlawful entry into a dwelling house (§ 602.5, subd. (a); count six), and two counts of battery (§ 242; counts seven and eight). Counts one through five alleged a prior felony conviction and prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court granted defendant’s motion to strike counts four and five. A jury returned verdicts finding defendant guilty on the remaining counts. Defendant admitted the prior conviction and prison term.
The trial court sentenced defendant to state prison for seven years four months.
Factual Background
At about 9:30 p.m. on February 2, 2006, Dana S. and her 13-year-old son Matthew were watching television in their home. Dana S. heard sounds coming from the kitchen and upon investigation found a man she identified as defendant standing in the kitchen.
Dana S. and her son fled through the front door, but defendant grabbed the boy outside the front door. Dana S. grabbed her son and he eventually broke free from defendant’s grasp. They ran to a neighbor’s house and Dana S. saw defendant re-enter her home.
A sheriff’s department sergeant subsequently located defendant in the neighborhood. She detected the odor of alcohol coming from defendant. Dana S. and her son identified defendant in an in-field show up. A week or two after the incident, Dana S. discovered some jewelry missing from the kitchen.
Defendant presented testimony from himself and an acquaintance that he consumed a large quantity of whiskey in the afternoon and early evening on February 2. Defendant had no recollection of any events later in the evening on February 2.
Discussion
The trial court sentenced defendant to the upper term of six years on the first-degree burglary conviction, imposed two consecutive eight-month terms on counts two and three, and stayed the sentences on the remaining counts under section 654. The trial court imposed the upper term after it found the following factors in aggravation: (1) the victims were particularly vulnerable; (2) defendant’s prior convictions are numerous and recently more serious; and (3) defendant was on parole at the time the offenses were committed. The court emphasized defendant’s criminal record, stating “in particular, the prior convictions as outlined on pages seven, eight, nine of the Probation Officer’s report [do] have felony convictions suffered 1990 in Oregon; again, 1991 in Oregon; and 2003 in this county. Each does have violations of parole attached as there are probation violations for other matters. So it does appear that pursuant to the rules, the probation officer is correct that the aggravated term of six years is the appropriate term.”
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court concluded California’s determinate sentencing law violates the Sixth Amendment because it “allocates to judges sole authority to find facts permitting the imposition of an upper term sentence.” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 876].) Relying on Cunningham, defendant contends the trial court imposition of the upper term in the present case violated his Sixth Amendment right to a jury trial. This contention fails under Black II, supra, 41 Cal.4th 799.
We requested and received supplemental letter briefs from the parties regarding Black II, supra, 41 Cal.4th 799.
In Black II, our Supreme Court noted that in Blakely v. Washington (2004) 542 U.S. 296, the high court “explicitly recognized the legitimate role of ‘judicial factfinding’ in indeterminate sentencing, in which the judge may ‘implicitly rule on those facts he deems important to the exercise of his sentencing discretion.’ ” (Black II, supra, 41 Cal.4th at pp. 812-813.) Accordingly, the Court concluded that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) The Court added that “[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ ” (Ibid.) Because “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s determinate sentencing law, “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Ibid.)
Applying those conclusions to the facts before it, Black II noted that 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. . . . ‘recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ ” (Black II, supra, 41 Cal.4th at p. 818 [citations omitted].) The Court held that defendant’s criminal history alone rendered him eligible for the upper term sentence, stating “defendant’s criminal history and the jury’s finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence for the offense of continuous sexual abuse of a child.” (Id. at p. 820.)
Similarly, here the trial court identified two recidivist factors: defendant’s prior convictions are numerous and increasing in seriousness, and he was on parole at the time he committed the present offenses. The court also pointed out that defendant’s prior performance on probation was unsatisfactory. Under Black II, these were permissible court findings for Sixth Amendment purposes, and the findings rendered defendant eligible for the upper term. Defendant suffered no Sixth Amendment violation by the trial court exercise of its discretion in selecting the upper term.
Disposition
The trial court judgment is affirmed.
We concur.
SIMONS, Acting P.J., NEEDHAM, J.