P. v. Phelps

Filed 8/21/07 P. v. Phelps 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Fresno County. James L. Quaschnick, Judge.

Katherine Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On December 8, 2005, the Fresno County District Attorney filed an information in superior court charging appellant Rocky Julian Phelps, Jr., as follows: count Iunlawful taking or driving of a vehicle (Veh. Code,  10851, subd. (a)); count IIreceiving stolen property (Pen. Code,  496d, subd. (a)); count IIImisdemeanor resisting an officer (Pen. Code,  148, subd. (a)(1)); and counts IV and Vmisdemeanor hit-run driving (Veh. Code,  20002, subd. (a)).

On December 9, 2005, appellant was arraigned and pleaded not guilty to all counts.

On January 19, 2006, appellant entered into a plea agreement with the prosecution. On February 21, 2006, the court granted appellants motion to withdraw his plea after appellant rejected imposition of the middle term of imprisonment as part of the plea agreement.

On April 17, 2006, jury trial commenced.

On April 21, 2006, the jury returned verdicts finding appellant not guilty of count I and guilty of counts II-V.

On May 24, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of three years in state prison. The court imposed the upper term of three years on count II and concurrent 90-day terms on the remaining counts. The court ordered appellant to pay $7,294.97 in victim restitution. The court imposed a $400 restitution fine (Pen. Code,  1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (Pen. Code,  1202.45), and imposed a $20 court security fee (Pen. Code,  1465.8, subd. (a)(1)). The court also awarded 286 days of custody credits and ordered appellant to provide DNA samples (Pen. Code,  296).

On June 23, 2006, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

In November 2005, Richard Elliott worked for a company called The Butcher Shop. His duties entailed door-to-door selling of meat, poultry, and seafood from a company truck. The truck was a 2002 Chevrolet S10 (license No. 7S84026) and the name Butcher Shop appeared on both sides of the vehicle. On November 14, 2005, Elliott parked his company truck in front of a convenience store at Hedges and Ashlan Avenues around noon. He left the keys in the ignition and went inside the store. When he returned, the truck was gone. Elliott eventually called his employer and quit his job.

On November 15, 2005, Fresno Police Officers Donovan Pope and Steve Taylor were assigned to uniform patrol duty. At about 6:05 a.m., Pope received an anonymous call about someone trying to sell a stolen truck in the Southwest Fresno Area Policing District. The informant said the suspect truck was located in the 800 block of California Avenue, across from Edison High School. Officers Pope and Taylor investigated the area and saw a truck matching the description of the stolen vehicle. The truck bore license No. 7S84026 and had the word Butcher on the side of the truck. The officers followed the truck as it traveled northbound on A Street. The suspect vehicle turned onto Mariposa Street and then took off at a high rate of speed. Officer Pope called for a backup unit to assist.

Pope watched the vehicle drive past a stop sign, continue speeding, and then turn off of Pottle Street onto Kern Street. At that point, the driver of the truck lost control and the vehicle crashed into two parked cars near Pottle and Kern Streets. Maria Contreras owned both vehicles, a 1992 black Chevrolet Corvette and a 1994 green Ford Taurus. Pope estimated the truck was going 40 to 45 miles per hour at the time of impact. The truck flipped around from the impact and began rolling in the opposite direction. Pope watched appellant jump from the drivers seat and begin to run away from the scene.

Officers Pope and Taylor pursued appellant in a foot chase for several hundred yards. The chase proceeding through an apartment complex, then a field, and then up a street. At one point, Pope slipped and hurt his wrist. Pope caught up with appellant as he attempted to scale a fence and applied a taser to stop appellant. The chase lasted about two minutes and Pope took appellant into custody after applying the taser. Appellant was transported to University Medical Center (UMC) to be checked for injuries incurred in the crash of the truck.

At UMC, Pope read appellant his rights under Mirandav.Arizona (1966) 384 U.S. 436 and appellant waived those rights. Appellant told Pope he obtained the truck from a friend named Michael and that he had given Michael $5 to borrow the truck and use it to go to the store. Pope asked appellant whether he knew the vehicle was stolen. Appellant nodded, smirked, and said, [Y]eah. Appellant later said he did not know for certain whether the truck was stolen. Appellant also told Pope he did not stop for the officers because he thought he had an outstanding warrant. Richard Elliott said he did not know appellant and never gave him permission to take the truck.

Justin Breitwieser, manager of the Butcher Shop, said the damage to the truck exceeded its value and the truck was totaled.

Defense

Appellant was 22 years old at the time of trial. On the morning of November 15, 2005, appellant was standing outside of his house when a man named Michael came by seeking drugs on credit. Appellant said he needed to go to the store and Michael offered to loan him the truck in exchange for some drugs. When appellant asked Michael where he got the truck, Michael said, [D]ont worry about it. I checked it out when I got it from where I got it from. Theres nothing wrong with it.

Appellant said the officers began their pursuit shortly after he got in the truck and began driving to the store. He decided to evade the officers because he had an outstanding arrest warrant for failure to attend spousal abuse classes. After appellant crashed the truck, he fled on foot until he was apprehended. Appellant denied telling officers the truck was stolen or nodding his head in agreement when asked whether he knew the truck was stolen. Appellant admitted selling drugs to Michael and not having a drivers license. He also admitted an arrest for being in a stolen car when he was 15 years old.

On cross-examination, appellant admitted a 1999 theft conviction and said he had served several years in custody. He also admitted providing crack cocaine to Michael in exchange for use of the pickup truck. Appellant claimed he wasnt sure whether Michael worked for the Butcher Shop Company. Appellant acknowledged he had never seen Michael in the Butcher Shop truck before. Appellant said he smoked weed on most mornings, but did not have a chance to do so on the morning of November 15.

The defense offered into evidence a minute order dated November 9, 2005. That order showed that appellant failed to appear in Judge David Gottliebs courtroom on that date and that the court had issued a $50,000 bench warrant as a result.

Rebuttal

Susanne Abi-Rached, a supervisor for the Fresno County Superior Court, testified about local warrant procedures. She said when a judge orders a warrant for a defendants failure to appear, the order is entered into a computer case management system known as COFAX. The warrant is then electronically transferred to the warrant division of the Fresno County Sheriffs Department, where it becomes active in the system. Abi-Rached confirmed that appellant had failed to appear in court to explain why he was not attending a treatment program for misdemeanor spousal abuse. The court authorized a $50,000 warrant for appellants arrest on November 9, 2005, but the warrant itself was not issued until November 18, 2005. The warrant was returned to the court on an error report and was manually retyped and reissued on January 25, 2006.

Sharon Ann Doolittle, a staff member of the records division of the Fresno County Sheriffs Department, testified that appellants warrant was not actually published to law enforcement until January 29, 2006. She said the warrant was not in the system on November 15, 2005, and would not have been located had an officer called in for a warrant check on that date.

DISCUSSION

I.

THE UPPER TERM SENTENCE: ABUSE OF DISCRETION

Appellant contends the trial court abused its discretion in imposing the upper term of imprisonment on count I.

The trial court stated at the May 24, 2006, sentencing hearing:

Okay. I am going to impose the aggravated term of three years for violation of Penal Code section 496(d)(a), subparagraph A rather. The defendant is sentenced to state prison for the aggravated term of three years.

In regards to the findings in mitigation/aggravation, in terms of aggravation rule 4.421, facts relating, subparagraph A, facts relating to the crime find no factors in aggravation relating to the crime, however ... 4.421, subsection B, factors related to the defendant, the defendants prior convictions as an adult [and] sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness. The defendant was on probation or parole when the crime was committed, and the defendants prior performance on probation or parole was totally unsatisfactory.

In the factors in mitigation, as to the crime, subsection A, at rule 4.423, I find no factors in mitigation relating to the crime, however, subsection B the factors relating to the defendant I do acknowledge that he voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process. And that is by his acknowledging a plea to a no initial state prison; however, when the sentencing judge did not agree to that, and offered him 16 months, he rejected that and wanted to go to trial.

The defendant is fined, while as to time credits he will receive 191 actual days, 95 conduct, for a total of 286 days, and pursuant to Penal Code section 1202.4 defendant is ordered to pay restitution fine in the amount of $400, and in compliance with Penal Code section 1202.45 the defendants additional fine $400 will be imposed if a period of parole is ordered, and it will be suspended unless parole is revoked. Also I am accepting the Rolfsons Auto Body estimate of $7,294.95, and order the defendant make that restitution payment and will be paid to the victim in this matter.

Appellant now contends:

The original probation report, dated February 14, 2006, and prepared for Judge Vogt for appellants February 21, 2006 sentencing after a conditional plea to no initial state prison, recommended two years in prison because of appellants lengthy juvenile criminal history and the fact that appellant was on misdemeanor probation when he committed the current offense. Apparently unwilling to impose probation in the face of a probation report that recommended two years in prison, Judge Vogt indicated that he would impose a term of 16 months. Appellant rejected the indicated sentence of 16 months, withdrew his plea, and proceeded to trial, whereupon he was found not guilty of the auto theft but guilty of the remaining counts.

At sentencing, the trial court retracted as a factor in mitigation Rule 4.423(b)(3)The defendant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process. By failing to credit as a mitigating factor appellants acknowledging of wrongdoing at an early stage of the criminal process, and in imposing the aggravated term of three years when another judge of the same Fresno County Superior Court, in reading the same probation report and with knowledge of the same facts, was willing to impose a 16-month mitigated term, the court committed sentencing error.... Remand for resentencing is required only if the trial court abuses its discretion in weighing the aggravating and mitigating circumstances. (People v. Combs (1986) 184 Cal.App.3d 508, 511-512.) Here, the trial court failed to weigh the mitigating circumstances of appellants employment, lack of prior felony record, and acknowledgment of wrongdoing against defendants record of misdemeanor prior offenses....

Although there were factors in aggravationthat appellant had suffered prior misdemeanor convictions, that appellant was on probation, and that his prior performance on probation was unsatisfactory, the factors in aggravation did not outweigh the factors in mitigation. Appellant obtained his GED while at CYA. He maintained employment as a carpet layer. He was acquitted of the auto theft. He mistakenly believed that the car was not stolen, when he got into the drivers seat. As appellant stated at his sentencing: I plea guilty to all the cases that was before me, but to honestly say that I did not think that car was stolen, when I got in the drivers seat of that car. Under Rule 4.423(7) it is a mitigating circumstance if the defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal.

A commitment to the upper term of three years in a non-violent felony for a first-time felon who has never been sent to prison before was an abuse of discretion in the sense that it was arbitrary, capricious, and unfair, resulting in a miscarriage of justice.

... This is a case where the outcome at trial was actually more favorable to appellant than had he accepted the plea agreement, because the plea agreement required an admission to two felony convictions instead of the one conviction appellant sustained at trial. The probation department, with knowledge of the salient facts of the case, did not alter its sentencing recommendation after the trial. The court appears to have failed to accord appellant the benefit of any mitigating circumstances whatsoever. In short, the three-year aggravated term was an abuse of discretion because the sentence violates Penal Code 1170(b)in that the aggravating circumstances do not outweigh the mitigating circumstances. Accordingly, the case must be remanded for sentencing.

Under California law, when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Pen. Code,  1170, subd. (b); People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583.) Sentencing courts have wide discretion in weighing aggravating and mitigating factors and may balance them against each other in qualitative as well as quantitative terms. (Avalos, supra, at p. 1582.) The court may impose the upper or lower term of imprisonment only where the balance of aggravating or mitigating factors cited in support of that choice weighs against imposition of the middle term. (People v. Scott (1994) 9 Cal.4th 331, 350.)

Because the weighing of factors involves a flexible quantitative and qualitative analysis, a trial court is free to decide that the mitigating influence of such factors, if any, was small. (People v. Thornton (1985) 167 Cal.App.3d 72, 77; People v. Regalado (1980) 108 Cal.App.3d 531, 538-539.) The obligation to consider mitigating circumstances does not require the court to separately discuss each circumstance in mitigation or set forth its reasons for rejecting a mitigating factor. (People v. Jones (1985) 164 Cal.App.3d 1173, 1181; People v. Evans (1983) 141 Cal.App.3d 1019, 1022.) Unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances, enumerated in the sentencing rules. (People v. White (1981) 117 Cal.App.3d 270, 280, disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 356.)

On appeal, we review the courts sentencing determination for an abuse of discretion. A trial court abuses its discretion only when its choice is arbitrary or capricious, or exceeds the bounds of reason after consideration of all of the circumstances. (People v. Trausch (1995) 36 Cal.App.4th 1239, 1247.) A single factor in aggravation will support imposition of an upper term. (People v. Carron (1995) 37 Cal.App.4th 1230, 1241; People v. Cruz (1995) 38 Cal.App.4th 427, 433.) Even if the trial court improperly relied on a particular aggravating factor, the upper term may still be imposed if there remains one unassailable valid factor in aggravation. (People v. Forster (1994) 29 Cal.App.4th 1746, 1759.)

In the instant case, the initial probation report was dated February 14, 2006, and noted no factors in aggravation or mitigation relating to the crime. As to facts relating to the defendant, the probation officer noted in aggravation that (a) appellants prior convictions as an adult or sustained petitions as a juvenile were numerous or of increasing serious; (b) appellant was on probation or parole when the crime was committed; and (c) appellants prior performance on probation or parole was unsatisfactory. The probation officer noted in mitigation that appellant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process. At that time, the probation officer recommended denial of probation and imposition of the two-year middle term.

In the supplemental report filed May 25, 2006, the probation officer noted the very same circumstances in aggravation and mitigation and again recommended a denial of probation. The probation officer further noted appellants lengthy criminal juvenile history, his prior commitment to the County of Fresno Elkhorn Correctional Facility and the California Youth Authority (CYA), and his dishonorable discharge from the latter institution. The probation officer nevertheless expressed agreement with the prior recommendation from her office and recommended imposition of the two-year middle term.

At the sentencing hearing, the prosecutor urged imposition of the three-year upper term based on appellants record (including a juvenile adjudication for arson, dishonorable discharge from CYA, three misdemeanors involving spousal battery) and the potential risk to the public caused by the speed at which he drove and the foot chase he led the Fresno Police Department officers on after that. In response, defense counsel noted that the arson occurred when appellant was under age 14 and that appellant had never denied causing damage to Maria Contrerass vehicles. Defense counsel also noted that his client was initially willing to plead to this as a NISP. Defense counsel also asserted that appellant did not believe the vehicle was stolen at the time the offense occurred. In reply, the prosecutor stated: The defendant told the jury that he was selling crack cocaine, and that when he was selling crack cocaine ... he took possession of the stolen vehicle and led the officers of that dangerous c[h]ase.

Appellant spoke at the sentencing hearing and admitted selling drugs, stating: [S]ometimes I have to do things to get by in life. I dont work for a week, then I have to pay bills. At the conclusion of appellants remarks and the arguments of counsel, the court imposed the three-year upper term of imprisonment. In imposing this sentence, the court found in aggravation that (a) appellants prior convictions as an adult or sustained petitions as a juvenile were numerous or of increasing serious; (b) appellant was on probation or parole when the crime was committed; and (c) appellants prior performance on probation or parole was unsatisfactory. The court found in mitigation that appellant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process.

The trial courts ruling is entitled to the presumption of correctness. If the courts sentencing scheme and its statement of reasons therefore are supported by available, appropriate, relevant evidence, the statement of reasons need not also demonstrate that the trial court did not rely on inappropriate or irrelevant evidence. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1775.) Here, the cited circumstances in aggravation amply supported the imposition of the upper term. Although appellant contends the court minimized or ignored his voluntary acknowledgment of wrongdoing, the record reveals the court did consider that factor as a circumstance in mitigation. The trial court acted well within its wide discretion in weighing aggravating and mitigating factors and balanced them against each other in qualitative as well as quantitative terms. (People v. Avalos, supra, 47 Cal.App.4th at p. 1582.) Imposition of the upper term of imprisonment did not constitute an abuse of discretion under all of the facts and circumstances of the instant case and appellants contention must be rejected.

II.

THE UPPER TERM SENTENCE: DUE PROCESS

Appellant contends the upper term sentence imposed on count II violated the exercise of his due process right to a jury trial.

A. Background

On January 19, 2006, appellant pleaded no contest to counts I-V. The Honorable John Vogt, judge of the superior court, took the plea and gave an indicated sentence of probation. Judge Vogt referred the matter to the probation department for a report and recommendation and scheduled the matter for sentencing on February 21, 2006. The probation officer recommended denial of probation and imposition of the middle term of two years in state prison. On the date set for sentencing, Judge Vogt allowed appellant to withdraw his plea. The court explained: I can not retrieve the considerations that I gave in providing this indication for probation here. Based on the information thats in this report, I can not follow that indicated previously given. At the conclusion of the hearing, the court set the matter for a jury trial.

B. Sentencing after Jury Verdicts

On April 21, 2006, the jury returned verdicts finding appellant guilty of counts II (receiving a stolen vehicle), III (resisting a peace officer), IV and V (hit-and-run driving). The following exchange occurred at the May 24, 2006 sentencing hearing:

MR. DAYS [deputy public defender]: Judge, if I could just say one thing, just elaborate on what Mr. Phelps stated.

THE COURT: Yes.

MR. DAYS: I just, I find this of particular note, and Im not sure what weight the court will hold, but this is the first time Mr. Phelps has ever gone to trial or contested any allegations against him.

MR. McKNEELY [deputy district attorney]: He appealed his CYA commitment. He had three separate violations of law while a juvenile. He had two more additional probation violations. He went to the Youth Authority. He was paroled, he went back, he appealed the decision to go back. He was charged with a felony 422 and a felony 273.5 against the mother of his children, plead it down to misdemeanor, and then twice violated court order against the mother of his children.

MR. DAYS: But just my point was that in terms of charges against him, hes never gone to trial, and I dont think anything the district attorney has stated in response has refuted that. Hes always admitted to that which he has done, even though the jury found the way that it found, and no ones disputing the validity of that verdict, he did take the stand, consistent with 4.423(a)(7), it clearly wasnt reasonable, a reasonable belief that that vehicle wasnt stolen, even if he had that belief. But we ended up going to trial, plea was busted, its the first time hes ever gone to trial, so I think that thats indicia of his belief that there was an issue there, but more importantly, hes always plead to what hes done, and despite what he testified to on the stand, I do think that it is worth something positive that he testified, and I think the jury believed what he testified to, but they didnt believe that what he thought was reasonable.

MR. McKNEELY: To the extent that the court wants to know about it because Mr. Days brought it up, the defendant plead to the case when the offer by the court was a NISP [no initial state prison]. When the court, Judge Vogt indicated two year middle term, thats when the defendant withdrew his plea. So he pleads when he thinks hes going to get probation.

MR. DAYS: Actually, thats another thing. The indicated was 16 months by Judge Vogt when the NISP was busted.^[[1]]

THE COURT: He plead to a NISP.

MR. DAYS: Thats correct. When that plea was busted, the courts indicted at that point was 16 months.

THE COURT: And he rejected that?

MR. DAYS: That is correct.

THE COURT: Okay. I am going to impose the aggravated term of three years for violation of Penal Code section 496(d)(a), subparagraph A rather. The defendant is sentenced to state prison for the aggravated term of three years.

Appellant argues:

The courts focus on the rejected plea agreement, followed by an immediate imposition of the upper term, leads clearly to an inference that the court imposed the upper term in light of appellants refusal to accept the plea agreement in preference to exercising his right to a jury trial. Appellant should not have received a worse sentence than that recommended by the probation office and worse than that indicated by another judge of the same court, simply by virtue of his having proceeded to trial. This is not a case where a defendant, remorseful over a negative result at trial, prays for a previously rejected plea bargain. This is a case where the outcome at trial was actually more favorable to appellant than if he had accepted the indicated sentence from the court, because under the previous scenario appellant would have suffered two felony convictions instead of the one conviction suffered at trial. Furthermore, the probation department, with full knowledge of the salient facts of the case, did not alter its sentencing recommendation after trial. The court appears to have failed to accord appellant the benefit of any mitigating circumstances whatsoever. The three-year aggravated term appears punitive, retaliatory, and unjustified, and appellant objects that the aggravated term was imposed in violation of appellants due process right to the exercise of a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution.

Under California and federal law it is well settled that to punish a person for exercising a constitutional right is a due process violation of the most basic sort. The constitutional right to trial by jury in criminal prosecutions is fundamental to our system of justice. Thus, only the most compelling reasons can justify any interference with an accuseds prerogative to personally decide whether to stand trial or to waive his or her rights by pleading guilty. A court may not offer any inducement in return for a plea of guilty or nolo contendere. A court may not treat a defendant more leniently because he or she foregoes the right to trial or more harshly because he or she exercises that right. The refusal of an accused to negotiate a plea with the prosecution must not influence the sentence imposed by the court after trial. Nevertheless, not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid. Specifically, there is no per se rule against encouraging guilty pleas. A state may encourage a guilty plea by offering substantial benefits in return for the plea, which may obtain for the defendant the possibility or certainty of a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty. (People v. Collins (2001) 26 Cal.4th 297, 305-310 & fn. 4.)

Further, a trial courts discretion in imposing sentence is in no way limited by the terms of any negotiated pleas or sentences offered the defendant by the prosecution. The imposition of sentence within legislatively prescribed limits is exclusively a judicial function. When granting probation, for example, courts have broad discretion to impose conditions directed toward rehabilitation of the offender and safety of the public. Legitimate facts may come to the courts attention either through the personal observations of the judge during trial or through the presentence report by the probation department, to induce the court to impose a sentence in excess of any recommended by the prosecution. A court may not, however, impose a sentence that conflicts with a defendants exercise of his or her constitutional right to a jury trial. (In re Lewallen (1979) 23 Cal.3d 274, 281 (Lewallen).)

In the instant case, appellant cites Lewallen and contends his refusal to negotiate a plea clearly appears to have influenced the courts decision to impose the aggravated three-year term. The Lewallen case is factually distinguishable from the instant one. In Lewallen, the defendant declined to accept the prosecutors offer of a reduced prison sentence on one count in exchange for a plea of guilty on that count. The defendant went to trial and was found not guilty on that count but guilty on other counts. In sentencing defendant, the trial court expressly determined he should receive a sentence greater than that to be imposed under the terms of the rejected plea offer, merely because the defendant elected a jury trial. The Supreme Court concluded the trial court essentially punished the defendant for the exercise of his right to trial and vacated the judgment of sentence. (Lewallen, supra, 23 Cal.3d at pp. 276-280.) Here, the sentencing judge did not base the imposition of the upper term on appellants exercise of his right to a jury trial. Rather, the court cited the following factors in aggravation:

[T]he defendants prior convictions as an adult [and] sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness. The defendant was on probation or parole when the crime was committed, and the defendants prior performance on probation or parole was totally unsatisfactory.

The foregoing factors constituted legitimate facts that came to the courts attention either through the personal observations of the judge during trial or through the presentence report by the probation department and induced the court to impose a sentence in excess of that associated with the earlier plea agreement. The courts sentence did not conflict or interfere with appellants exercise of his constitutional right to jury trial and his claim of error must be rejected.

III.

THE UPPER TERM SENTENCE: CUNNINGHAM v. CALIFORNIA

Appellant contends the trial courts sentence violated his Sixth Amendment right to a jury trial under Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and related cases.

In imposing the upper term, the trial court stated at sentencing:

In regards to the findings in mitigation/aggravation, in terms of aggravation rule 4.421, facts relating, subparagraph A, facts relating to the crime find no factors in aggravation relating to the crime, however ... 4.421, subsection B, factors related to the defendant, the defendants prior convictions as an adult [and] sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness. The defendant was on probation or parole when the crime was committed, and the defendants prior performance on probation or parole was totally unsatisfactory.

In the factors in mitigation, as to the crime, subsection A, at rule 4.423, I find no factors in mitigation relating to the crime, however, subsection B the factors relating to the defendant I do acknowledge that he voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process. And that is by his acknowledging a plea to a no initial state prison; however, when the sentencing judge did not agree to that, and offered him 16 months, he rejected that and wanted to go to trial.

Appellant now contends:

The trial court sentenced appellant to the upper term of three years for the crime of receiving stolen goods, Penal Code 496. As circumstances in aggravation, the court found no factors in aggravation relating to the crime, but did find that appellants prior convictions were numerous and of increasing seriousness, that appellant was on probation when the crime was committed, and that his prior performance on probation was unsatisfactory. The court found no factors in mitigation. As the United States Supreme Court held in Apprendi v. New Jersey, supra, 530 U.S. at 490: 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. Thus the only factor that could be used as an aggravating factor without submission to a jury would be the fact of a prior conviction. The fact that appellant was on probation or that the court deemed his prior performance on probation to be unsatisfactory, would not survive a Cunningham-Apprendi analysis, because such factors involve qualitative judgments on the part of the sentencing court. Moreover, during the entire sentencing process, the court referred to defendants past work history as a drug salesman; appellants allegedly false testimony at trial; appellants heavy involvement in selling drugs; appellants putting a lot of people in a dangerous situation; the fact that appellant could have killed anybody ... killed people in another car ....; and appellants rejection of a 16-month plea bargain.

Appellant also contends:

Although the trial court did not specifically state as factors in aggravation any factors other than appellants numerous prior convictions, appellants probationary status when the crime was committed, and his allegedly unsatisfactory prior performance on probation, it is clear from the sentencing transcript that the court relied on numerous subjective, qualitative judgments about appellant as justification for the upper term. None of the factors used by the trial court except the fact of appellants prior convictions pass muster under Cunningham. The imposition of the upper term was the type of judgment call that Cunningham, Blakely, and Apprendi reserve for the jury.

In Blakely, supra, 542 U.S. 296, the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): 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. (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that [a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. (United States v. Booker (2005) 543 U.S. 220, 244.)

In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on this states determinate sentencing law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendants Sixth Amendment right to a jury trial. (Black I, supra, 35 Cal.4th at p. 1244.)

In Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], the court held Californias Determinate Sentencing Law violates a defendants Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on factsother than the fact of a prior convictionfound by the court rather than by a jury beyond a reasonable doubt.

As this Courts decisions instruct, the Federal Constitutions 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. Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005). [T]he relevant statutory maximum, this Court has clarified, is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely, 542 U.S., at 303-304 (emphasis in original).... [] ... []

Contrary to the Black courts holding, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] 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. (Cunningham, supra, 549 U.S. at pp. __, __ [127 S.Ct. at pp. 860, 871, fn. omitted.)

In People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 D.A.R. 11041] (Black II), the Supreme Court held in response to Cunningham:

[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. [] ... []

Accordingly, 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....

... Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) 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. [] ... []

... 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. (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) [R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Almendarez-Torres, supra, 523 U.S. at p. 243.) (Black II, supra, __ Cal.4th __ [2007 D.A.R. 11041, 11044-11045, 11047, fn. omitted].)

Here, the trial court expressly found: [T]he defendants prior convictions as an adult [and] sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness. The trial courts conclusions as to appellants adult convictions were predicated on findings made upon proof beyond a reasonable doubt. To paraphrase Apprendi,the facts increasing the penalty for appellants crime beyond a prescribed statutory maximum had been submitted to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.)

The trial court imposed an upper term based on judicially-found facts deemed constitutionally permissible under Apprendi, Blakely, Cunningham, and Black II. Therefore, resentencing is not required on count II.

DISPOSITION

The judgment is affirmed.

_____________________

HARRIS, Acting P.J.

WE CONCUR:

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LEVY, J.

_____________________

DAWSON, J.

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^[1]The reporters transcripts of the January 19 and February 21, 2006, hearings do not reflect an indicated sentence of 16 months in state prison. The clerks minute order of an April 6, 2006 hearing conducted by Judge Vogt stated: Crt indicates Mid 16 mos rejected by ∆. However, the record does not include a reporters transcript for that hearing. At an April 17, 2006 hearing, the Honorable W. Kent Hamlin, judge of the superior court, stated: Weve talked about a possible resolution of the case which would be an offer previously rejected by the Defendant of a mitigated term of 16 months in State Prison, with a plea to Counts 1, 3, and 4 .... Judge Hamlin noted that appellant countered that offer with some conditions Im not inclined to add to the offer.... Appellants trial counsel stated that his client was not prepared to accept the indicated sentence as outlined by Judge Hamlin.