P. v. Mesa

Filed 9/19/07 P. v. Mesa CA1/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

James Isaac Mesa appeals from a judgment entered after a jury convicted him of multiple criminal offenses. In our original unpublished opinion, filed on June 15, 2007, we affirmed appellants conviction, but reversed the upper term sentences that were imposed based on our interpretation of Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham).) On August 29, 2007, the California Supreme Court granted a petition for review and transferred the case to us for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 (Black), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In light of those cases, we will affirm appellants upper term sentences.

I. DISCUSSION

The trial court imposed upper term sentences explaining that its decision was supported by three factors: (1) appellant engaged in violent conduct indicating a serious danger to society; (2) appellants prior convictions as an adult and sustained proceedings as a juvenile were numerous and of increasing seriousness; and (3) appellants prior performance on probation and parole was unsatisfactory.

Appellant now claims the upper term sentences must be reversed because they were based on facts that were neither admitted nor found by the jury to be true.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the court held that Californias determinate sentencing law violated a defendants federal constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 871.)

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Sandoval, supra, 41 Cal.4th at pp. 836-837.) The latter exception was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), and has been construed broadly to apply to all factors based on a defendants recidivism. (See Black, supra, 41 Cal.4th at p. 819; People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.) If the trial court has found at least one aggravating factor that falls within either of these exceptions, the federal Constitution does not preclude it from imposing an upper term sentence based on that and other aggravating factors that do not fall within these exceptions. (Black, supra, 41 Cal.4th at pp. 810-816.)

Here, one of the aggravating factors on which the trial court relied was within the Almendarez-Torres exception, i.e., that appellants prior convictions were numerous and increasingly serious. The trial courts finding on that point is amply supported by the record. The probation report indicates appellant has a lengthy criminal record that includes convictions for assault with a deadly weapon, burglary, and drug offenses. According to the report, appellant is no stranger to the criminal justice system, and for the better part of the last 24 years has either been incarcerated or supervised by various state and local agencies.

We conclude, pursuant to the Almendarez-Torres exception, the court properly sentenced appellant to the upper terms.^[1]

II. DISPOSITION

The judgment of conviction is affirmed. However, the matter is remanded to the trial court for correction of the errors identified in section II.C. of our opinion dated June 15, 2007. After making those corrections, the trial court must forward an amended abstract of judgment to the Department of Corrections.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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^[1] In all other respects, our decision dated June 15, 2007 remains in effect.