P. v. Richardson

Filed 10/2/07 P. v. Richardson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant James Russell Richardson guilty of assault with a deadly weapon and found true an enhancement that he personally inflicted great bodily injury on the victim. The trial court sentenced him to a total of seven years in state prison, which included the four-year upper term for assault. The trial court explained its selection of the upper term as follows: There are a number of circumstances in aggravation. This violent conduct is certainly a serious danger to society. The defendant does have prior convictions as an adult. They are . . . increasing in number and seriousness. He does have a violent history, and plainly his past performance on probation has been unsatisfactory. I dont know of any mitigating circumstances.

Defendants sole contention on appeal is that the trial courts imposition of the upper term violated his constitutional right to a jury trial. We disagree.

Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that [o]ther 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. (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) Under this rule, the statutory maximum is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)

In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court rejected a claim of Blakely error, concluding that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendants Sixth Amendment right to a jury trial. (Black I, at p. 1244.)

In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], however, the United States Supreme Court held that under Blakely and other decisions, Californias determinate sentencing law does violate[] a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments to the extent the law allows a judge to impose an upper term sentence based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, at p. ___ [166 L.Ed.2d at p. 864].)

On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)

Here, one of the factors on which the court relied in imposing the upper term was defendants prior convictions. Its conclusion is supported by the probation report which lists five prior convictions for defendant. Because this one aggravating factor made defendant eligible for the upper term, the trial court did not violate defendants right to a jury trial in imposing the upper term.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

HULL, J.

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