P. v. Marin

Filed 11/1/07 P. v. Marin CA2/4

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed.

Jonathan B. Steiner and Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen, Ryan M. Smith, Chung L. Mar and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Appellant Oscar Marin was convicted of petty theft with prior convictions. (Pen. Code, 666.) His sole claim on appeal is that the trial court violated his Sixth Amendment right to jury trial by sentencing him to the upper term for the offense, based on aggravating facts that were neither found by a jury nor admitted by appellant. He relies on Blakely v. Washington (2004) 542 U.S. 296, for that proposition. In our original opinion, we rejected his position, based on the decision of the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I) that such upper term sentencing under the determinate sentencing law did not violate constitutional principles as declared in Blakely and other high court decisions.

The United States Supreme Court granted certiorari to review our decision and ultimately reversed the decision and remanded the case in light of its decision in Cunningham v. California (2007) 549 ___ U.S. ___ [127 S.Ct. 856, 871], rejecting the rationale of Black I. While on remand, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, which bear on the issue. We invited the parties to submit letter briefs on the application of these 2007 decisions to the present case. They have done so, and we have considered their responses. We conclude that the upper term sentencing in this case did not violate constitutional requirements.

In imposing the upper term, the trial court relied on five factors: defendants prior criminal history, the fact that he was on parole when the present offense was committed, he was armed when it was committed, he forcibly tried to resist apprehension for the offense, and the crime was egregious. Of these, the first two factors are recidivist and the others are not. In Black II, our Supreme Court held that the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence (Black II, supra, 41 Cal.4th at p. 815), so long as that factor was constitutionally determined. The defendants criminal history and, in particular, the fact that he was on parole (a status that requires a previous commitment to state prison; see Pen. Code,  3000 et seq.), qualify. They render defendant eligible for upper term sentencing, and in deciding whether to impose that level of punishment, the trial court may consider both recidivist and nonrecidivist factors which are germane and established by the record. That is what occurred in this case.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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