Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB058975. Annemarie G. Pace, Judge.
Jean Ballantine, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Felicity Senoski, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant guilty of possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) In a bifurcated proceeding, the trial court found true that defendant had previously been convicted of possession of cocaine base for sale, which qualified as a prior conviction under Health and Safety Code section 11370.2, subdivision (a), and that defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Defendant was sentenced to a total term of nine years in state prison as follows: the upper term of five years on the substantive offense, plus an additional three years for the prior drug conviction enhancement, plus an additional one year for the prison prior enhancement. On appeal, defendant makes several contentions related to his upper term sentence. Specifically, he contends (1) assertions in a probation report regarding prior convictions are not sufficiently reliable evidence of those convictions to support imposition of an upper term sentence; (2) People v. Black (2007) 41 Cal.4th 799 (Black II) was wrongly decided, as it directly contradicts the United States Supreme Court’s decision in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 116 L.Ed.2d 856] (Cunningham); and (3) People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) violates the equal protection. We reject these contentions and affirm the judgment.
The jury also found codefendant Jimmy Charles Landrom, who is not a party to this appeal, guilty of simple possession as a lesser included offense.
I
FACTUAL BACKGROUND
On the evening of November 5, 2006, San Bernardino police conducted a search of a room at the Paradise Motel on West Fifth Street in the City of San Bernardino. Defendant had checked into the room earlier that day.
Upon entering the room, police encountered three occupants: a woman, Susan Evans, and two men, defendant and Landrom, both of whom were sitting on one of the beds. Initially, the men were detained on the floor while they were handcuffed. When the officers lifted defendant up to move him, they discovered a plastic bag containing 11 individually wrapped pieces of base cocaine under his abdomen. A search of the room revealed other items, including a digital scale, a razor blade with white residue on it, a box of plastic sandwich bags, five pieces of individually wrapped cocaine base on the bed and two more on the floor nearby, a duffle bag containing $148, $55 on defendant’s person, two pieces of rock cocaine and a pipe on Evans’s person, and four cellular telephones. The cocaine base had a street value of about $380. Defendant acknowledged that he was unemployed. Based on the evidence presented, one of the officers opined that the drugs were possessed for purposes of sale.
II
DISCUSSION
The probation report in this case revealed that defendant’s criminal history included convictions in eight prior cases: felony possession of a controlled substance for sale in October 1988, felony receiving stolen property in July 1989, felony drug possession in February 1992, misdemeanor spousal abuse in July 1997, misdemeanor disorderly conduct in March 2001, felony petty theft with priors in April 2001, two counts of felony drug possession for sale in July 2003, and misdemeanor illegal drug activity/loitering in a public place in July 2006. These prior convictions were listed in the probation report and were based on records of the San Bernardino County Sheriff’s Office, the Bureau of Identification, the Department of Motor Vehicles, and the Federal Bureau of Investigation.
The trial court indicated at sentencing that it was aware of Cunningham and explained that it was imposing the upper term sentence based solely upon defendant’s criminal history: “[T]he reason I am giving him the aggravated term is based solely on his prior convictions, which Cunningham specifically excluded from the right to a jury trial. [¶] And so the record is clear, the aggravated — two of his six prior felony convictions are specifically pled in the Information, and I am using those only for those allegations. . . . [¶] . . . [¶] However, he has four other felony convictions which I am using to aggravate him: That is the 1998 possession of a controlled substance; his 1989 receiving stolen property; his 1991 possession of a controlled substance; and his 2001 petty theft with a prior. [¶] Those are the sole reasons I am using to give him the aggravated term as to Count One.”
In Cunningham, the high court overruled, in part, the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which had held, among other things, that the provisions of California’s determinate sentencing law (DSL) authorizing the trial court to find the facts permitting an upper term sentence did not violate a defendant’s right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 860.) The United States Supreme Court concluded that because our DSL “authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 871, fn. omitted.) The court held that the middle term in California’s DSL was the relevant statutory maximum for the purpose of applying Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi). (Cunningham, supra, at p. 868.)
However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi: “[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. [Citations.]” (Cunningham, supra, 127 S.Ct. at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488, 490.) The court explained California’s DSL violates Appprendi’s bright-line rule: “‘Except for 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.’ [Citation.]” (Cunningham, at p. 868.)
In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)
Our Supreme Court recently decided Black II, supra, 41 Cal.4th 799, following the United States Supreme Court’s remand of Black I for reconsideration in light of Cunningham. In Black II, the court recognized that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (See Pen. Code, § 1170, subd. (b); Black II, at p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.) Accordingly, the court in Black II held that a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, at p. 812.) “[A]ny additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, at p. 812.)
An aggravating circumstance is one that “makes the offense ‘distinctively worse than the ordinary.’ [Citation.]” (Black II, supra, 41 Cal.4th at p. 817.) Accordingly, aggravating circumstances include not only those listed in California Rules of Court, rule 4.421, but also “[a]ny other factors statutorily declared to be circumstances in aggravation” (Cal. Rules of Court, rule 4.421(c)), and any other facts “reasonably related to the decision being made” (Cal. Rules of Court, rule 4.408(a)).
The court in Black II explained: “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows 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.” (Black II, supra, 41 Cal.4th at pp. 815-816, italics added.)
Here, the trial court’s determination that defendant’s criminal history supported an upper term sentence falls squarely within the recidivism exception to Apprendi-Blakely-Cunningham. Defendant 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.)
The prior conviction exception to Apprendi-Blakely-Cunningham was recognized in Almendarez-Torres v. United States, supra, 523 U.S. at page 243, which has yet to be disapproved by the United States Supreme Court.
Defendant argues that the evidence in this case was insufficient to support the upper term because the only information about his prior convictions was hearsay and based on “bare recitation” of his prior record in the probation report that did not amount to proof beyond a reasonable doubt.
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.) The court in this case was not looking beyond the statutory elements of the prior convictions; it was enough that defendant had been previously convicted of the crimes listed in the probation report. Defendant 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].)
Defendant argues Black II’s holding that a person’s criminal history can render him or her eligible for an upper term sentence “was wrongly decided” because it contradicts the United States Supreme Court’s decision in Cunningham. However, as defendant candidly acknowledges, in light of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Supreme Court “decisions . . . are binding upon and must be followed by all the state courts of California”], this argument lacks merit.
We also reject defendant’s challenge that the remedy imposed by Sandoval, supra, 41 Cal.4th 825, which requires that on remand for Cunningham error, the defendant should be resentenced in accordance with the DSL as recently amended by the state Legislature pursuant to Senate Bill No. 40. (Sandoval, at p. 846.) Again, defendant recognizes that this court is bound by Sandoval. (Auto-Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) To preserve the issue for federal appeal, however, defendant contends that Sandoval’s “retroactive application of the reformation of Penal Code section 1170 violates the Equal Protection Clause of the federal [C]onstitution . . . because a defendant sentenced under Sandoval would not have the benefit of the same presumption in favor of the middle term as an identically situated crime partner sentenced before Sandoval.” We need not reach this issue, however, because we have concluded that the prior conviction exception (which is an issue that could be found by a trial court) is applicable in this case.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J., GAUT J.