P. v. Steele

Filed 5/2/07 P. v. Steele CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Justin Alexander Steele of making a criminal threat and assault with a deadly weapon, and the trial court sentenced him to the upper term on each count (an aggregate term of four years in state prison). On appeal, defendant contends that imposition of the upper term violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham). We shall affirm the judgment.

DISCUSSION

Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)

In Cunningham, the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point.)

Citing the aforementioned authorities, defendant contends that the trial courts imposition of the upper term violated his constitutional right to a jury trial. We disagree.

The court imposed the upper term based upon the fact that defendant was on CYA [California Youth Authority] parole at the time he committed the present offenses. Juvenile adjudications are prior convictions within the meaning of Apprendi (People v. Palmer (2006) 142 Cal.App.4th 724, 732; United States v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190; United States v. Jones (3d Cir. 2003) 332 F.3d 688, 695-696; United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032-1033); and the prior conviction exception applies not only to the fact of a prior conviction, but also to an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. (People v. Thomas (2001) 91 Cal.App.4th 212, 223.)

For example, the fact of a prior conviction, and related facts such as the timing of the conviction and the type and length of sentence imposed, may be judicially found at sentencing. (U.S. v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) Thus, the trial court may determine and rely on the defendants probation or parole status to impose the upper term. (Cf. United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142 (district court did not violate defendants Sixth Amendment jury rights by finding the offense was committed while the defendant was on probation); United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the prior conviction exception extends to subsidiary findings such as whether a defendant was under court supervision when he or she committed a subsequent crime].)

Accordingly, defendants status in parole after incarceration for a criminal offense committed as a juvenile falls within the prior conviction exception because it is premised on defendants prior criminal adjudication, does not relate to commission of the current offense, and is verifiable by review of court records. (See People v. Thomas, supra, 91 Cal.App.4th 212, 216-223.) Hence, defendants claim of constitutional error fails.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

RAYE , J.

ROBIE , J.

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