P. v. Brown

Filed 3/8/07 P. v. Brown CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

Our opinion, filed February 22, 2007, is modified as follows:

1. On page 1, the disposition (Affirmed as modified and remanded with directions) is deleted, and is replaced with:

Affirmed.

2. On page 2, the last sentence of the first full paragraph is deleted and replaced with:

We reject Browns claims of error and affirm the judgment.

3. On pages 5 - 6, the discussion under Part II is deleted, and the following is substituted in its place:

Brown contends his upper term sentence cannot stand. (Cunningham v. California(2007)___ U.S. ___ [127 S.Ct. 856].) We disagree.[1]

The trial court selected the upper term sentence because Brown had engaged in a continuing, escalating pattern of criminal conduct, which indicates a serious danger to society and [he was] also on parole at the time of this offense. Although neither factor was charged or found true by the jury, we agree with the Attorney General that the recidivism exception applies in this case -- because a defendant does not have a right to a jury trial for a sentence enhanced by a prior conviction. (Cunningham v. California, supra, 127 S.Ct. at p. 860 [the 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]; Almendarez-Torres v. United States (1998) 523 U.S. 224, 246 [there is no constitutional prohibition against a legislative authorization of a longer sentence for recidivism].)

Because a single aggravating circumstance renders a defendant eligible for an upper term enhancement (People v. Osband (1996) 13 Cal.4th 622, 728-729) and gives the trial court authority to impose the upper term sentence (Cunningham v. California, supra, 127 S.Ct. at p. 865), the trial courts reference to Browns past criminal conduct is sufficient to bring this case within the recidivism exception to the Cunningham rule.

4. On page 7, the paragraph under DISPOSITION is deleted and replaced with the following:

The judgment is affirmed.

This modificationdoes affect the judgment.

The Attorney Generals petition for rehearing is denied.

__________________________ _______________________ ____________________

VOGEL, Acting P.J. ROTHSCHILD, J. JACKSON, J.*

______________________________________________________________________________

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1] We reject the Attorney Generals contention that the Cunningham issue was forfeited by Browns failure to raise it below. (People v. Vera (1997) 15 Cal.4th 269, 276-278; People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5.)