P. v. Arreola

Filed 10/26/07 P. v. Arreola CA1/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

This case raises only a sentencing issue.

Defendant David Michael Arreola pleaded guilty to one count each of reckless driving while evading a police officer (Veh. Code,  2800.2, subd. (a)) and battery on a peace officer with injury (Pen. Code,  243, subd. (c)(2)).

The trial court sentenced defendant to the upper term of three years on the Vehicle Code offense and a consecutive eight months on the Penal Code offense, for a total of three years eight months.

In imposing the upper term, the trial court relied on three aggravating factors, all related to recidivism: (1) defendant had a number of prior convictions both as an adult and sustained petitions as a juvenile which are numerous and of increasing seriousness; (2) defendant was on probation at the time the crime was committed; and (3) defendant had mixed results in terms of his performance on probation.

On July 19, 2007, while this case was being briefed, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II). Black II resolves defendants contention that his upper term was imposed in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). The upper term was justified by the recidivist-based aggravating factor of numerous prior convictions of increasing seriousness, which falls outside the constitutional requirements of Cunningham and Blakely.

In Black II, the court held: Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, 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.  (Black II, supra, 41 Cal.4th at p. 813.)

In other words, if there is a single aggravating circumstance which satisfies Blakely, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to [a] jury trial. (Black II, supra, 41 Cal.4th at p. 812.)

The Black II court further held, consistent with existing authorities, that a defendants criminal historyincluding the increasing seriousness of his prior convictionsqualifies under the recidivism exception to Blakely. (Black II, supra, 41 Cal.4th at pp. 818-820.)

Thus, the aggravating factor based on the increasing seriousness of defendants prior convictions was properly found by the court and, under Black II, is sufficient to justify the upper term.

Defendant contends that his juvenile adjudications cannot be used to support the aggravating factor. We disagree. (See People v. Linarez (Oct. 5, 2007, C052722) ___ Cal.App.4th ___ [2007 D.A.R. 15490, 15492]; People v. Tu (2007) 154 Cal.App.4th 735, 740, 747-751.) In any case, the contention in this case is somewhat academic: the probation report discloses that defendant has six sustained juvenile petitions, including petitions for modification under Welfare and Institutions Code section 777, but 15 adult convictions, of increasing seriousness, dating from 1983.

Defendants upper term is appropriate.[1]

The judgment and sentence are affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Swager, J.

______________________

Margulies, J.

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[1] In light of this conclusion we need not reach the Attorney Generals arguments that defendant needs a certificate of probable cause and that defendants stipulation to a factual basis for his plea defeats his claim of Cunningham error.