P. v. Susmilch

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

This case raises only a sentencing issue.

Pursuant to a negotiated disposition, defendant Matthew Gabriel Susmilch pleaded guilty to unlawful possession of a firearm (Pen. Code,  12021, subd. (c)(1)), count 1, and misdemeanor resisting arrest (Pen. Code,  148, subd. (a)(1)), count 4. The trial court placed defendant on probation.

Several months later, the probation officer alleged that defendant had violated his probation by leaving a Salvation Army rehabilitation program without completing it, and failing to inform his probation officer of his whereabouts. Defendant admitted the probation violation.

The trial court revoked probation and sentenced defendant to the upper term of three years on count 1, and a concurrent county jail term of one year on count 4.

In imposing the upper term, the trial court relied on two aggravating factors, both related to recidivism: (1) defendant had numerous convictions of increasing seriousness; and (2) defendant has prior offenses of violence.

On July 19, 2007, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II). Defendant all but concedes that Black II resolves his 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.

Defendants upper term is appropriate.[1]

The judgment and sentence are affirmed.

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Marchiano, P.J.

We concur:

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Stein, J.

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Margulies, J.

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[1] In light of this conclusion we need not reach the Attorney Generals argument that defendant has forfeited his claim of Cunningham error by failing to object below.