P. v. King

Filed 7/31/07 P. v. King CA1/3

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Respondents petition for rehearing is granted and the opinion filed on July 18, 2007, is vacated and replaced by this opinion. This case was remanded to us by the United States Supreme Court after its decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). In light of our Supreme Courts recent decision in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 WL 2050875, 2007 Cal. Lexis 7604] (Black II), we now affirm the judgment.

PROCEDURAL BACKGROUND

In August 2005, we issued an opinion affirming appellants convictions for battery with injury against a peace officer ( 243, subd.(c)(2)) and resisting or deterring an officer with force or violence ( 69). (See People v. King (Aug. 23, 2005) 2005 WL 2010190, 2005 Cal.App. Unpub. Lexis 7586.) Relying on People v. Black (2005) 35 Cal.4th 1238, certiorari granted and judgment vacated by Black v. California (2007) 127 S.Ct. 1210.) (Black I), we rejected appellants argument that his right to jury trial was violated by the courts finding of aggravating factors at sentencing.

On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of Cunningham, supra, 127 S.Ct. 856. Pursuant to its mandate, we have recalled the remittitur. We have reexamined our initial opinion in this case, which we incorporate by reference, and have received supplemental briefing from the parties.[1]

The Trial Courts Sentencing Decision

The trial court sentenced appellant to the upper term of three years on the section 243 conviction for battery with injury on a peace officer, and imposed a concurrent term of one year on the section 69 conviction. The court also imposed a one-year sentence enhancement pursuant to section 667.5, subdivision (b). The trial court imposed the upper term after it found the following factors in aggravation: (1) the defendant engaged in violent conduct indicating a serious danger to the community; (2) defendants prior convictions are increasing in seriousness; (3) defendant was on probation at the time he committed this crime; and, (4) defendants prior performance on probation was unsatisfactory.

ANALYSIS

In Cunningham, the high court concluded Californias determinate sentencing law (DSL) violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence[.] (Cunningham, supra, 127 S.Ct. at p. 871.) Relying on Cunningham, appellant contends the trial courts imposition of the upper term in the present case violated his Sixth-Amendment right to a jury trial. This contention fails under Black II.

In Black II, our Supreme Court addressed the same issue. (See Black II, supra, at p. *1 [considering whether imposition of the upper term violated appellants right to a jury trial].) The Court noted that in Blakely, supra, the high court explicitly recognized the legitimate role of judicial factfinding in indeterminate sentencing, in which the judge may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. (Blakely, supra, 542 U.S. at p. 309.) (Black II, supra, at p. *7.) Accordingly, the Court concluded that 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. (Ibid.) The Court added that [t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense do not pertain to whether the defendant has a legal right to a lesser sentenceand that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Citation.) (Ibid.) Noting the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term under Californias DSL, the Court therefore concluded that 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 for Sixth Amendment purposes. (Ibid.)

Applying these conclusions to the facts before it, the Black II Court noted the high court  consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[,] [and that] recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offender's sentence.  (Black II, supra, at p. *10 [citations omitted].) On that basis, the Court reasoned defendants criminal history alone rendered him eligible for the upper term sentence. (Ibid.) In sum, the Court concluded defendants criminal history and the jurys finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence for the offense of continuous sexual abuse of a child. (Black II, supra, at p. *12.) Similarly here, the trial court identified three recidivist factorsdefendants prior convictions are increasing in seriousness; he was on probation at the time he committed this crime; and, his prior performance on probation was unsatisfactorywhich taken together certainly rendered him eligible for the upper term. (Id. at p. *11 [consistent with Sixth Amendment, trial court may determine not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions].) Hence, appellant suffered no Sixth Amendment violation by the trial courts exercise of its discretion in selecting the upper term in his case. (Ibid.)

DISPOSITION

The judgment is affirmed.

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Parrilli, Acting P. J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] In his supplemental brief, appellant reasserts various contentions he states he argued in his opening and reply brief. We reject those claims for the reasons articulated in our earlier unpublished opinion. (See People v. King, supra, WL 2010190.)