P. v. Merinar

Filed 4/4/07 P. v. Merinar CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson, Deputy Attorney General, for Plaintiff and Respondent.

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A jury convicted defendant Michael Theodore Merinar of one count of receiving stolen property. The trial court sentenced defendant to the upper term of three years, plus one year for a prior prison term enhancement. On appeal, defendant contends the court erred in imposing the upper-term sentence. We affirm.

DISCUSSION^[1]

Defendant contends the upper-term sentence violates his Sixth Amendment and Fourteenth Amendment rights to a jury trial and proof of all facts beyond a reasonable doubt rights because the sentence was based on aggravating factors not reflected in the jury verdict or admitted by defendant. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007, No. 05-6551) ____U.S.____ [127 S.Ct. 856] (Cunningham).)

Here, the trial court imposed the upper term based on the following three factors: (1) defendants prior convictions as an adult are numerous and of increasing seriousness; (2) defendant was on misdemeanor probation when the instant crime was committed; and (3) defendants prior performance on misdemeanor probation and parole has been unsatisfactory. !(4 RT 274)!

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority of the United States Supreme Court held, Other than the fact of 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. (Id. at p. 490.) Blakely held that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the court held that, under Californias determinant sentencing scheme, the upper term can only be imposed if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, ____ U.S.____ [127 S.Ct. 856].)

Blakely describes three types of facts that a trial judge can properly use to impose an aggravated sentence: (a) the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301); (b) facts reflected in the jury verdict (id. at p. 303, italics omitted); and (c) facts admitted by the defendant (ibid., italics omitted). The first type is at issue here. As Apprendi states, and Blakely agrees, prior recidivist conduct may be used by a sentencing judge, even absent a jury finding, to increase a defendants term. (Apprendi, supra, 530 U.S. at pp. 488, 490; Blakely, supra, 542 U.S. at p. 301.) Because defendant has suffered prior convictions and the court relied on the fact of these prior convictions to justify imposition of the upper term, defendants sentence does not violate Apprendi, Blakely, or Cunningham. (See Almendarez-Torres v. United States (1998) 523 U.S. 224 [recidivism is traditional, if not most traditional, basis for increasing offenders sentence].)

Assuming arguendo that the trial court erred in relying on other aggravating factors, the error was harmless. It is settled that only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Here, the trial court relied on defendant prior convictions and recidivism to impose the upper term, as permitted by Cunningham and Blakely. Thus, even if we were to assume error under Cunningham based on the trial courts reference to other aggravating factors, the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24; furthermore, there was no abuse of discretion under People v. Watson (1956) 46 Cal.2d 818, 836.

DISPOSITION

The judgment is affirmed.

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^* Before Levy, Acting P.J., Gomes, J. and Hill, J.

^[1] We have omitted a recitation of the facts as unnecessary to the resolution of the single sentencing issue raised by defendants appeal.