P. v. Childers

Filed 10/2/06 P. v. Childers CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Vernon Lee Childers entered a negotiated plea of no contest to vehicle theft (Veh. Code, § 10851, subd. (a)) and admitted having served three prior prison terms (Pen. Code, § 667.5, subd. (b)). In exchange for his plea, a charge for carjacking and two misdemeanor charges were dismissed with a Harvey waiver.^[1] The trial court sentenced defendant to the upper term of three years for the vehicle theft (based on the fact that defendant was on parole at the time of the offense and that his prior performance on parole was unsatisfactory), plus three consecutive one-year terms for the prison priors. Defendant was awarded 100 days of custody credit and 50 days of conduct credit, and was ordered to pay a $1,200 restitution fine (Pen. Code, § 1202.4) and another $1,200 restitution fine suspended unless parole is revoked (Pen. Code, § 1202.45).

Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)

We appointed counsel to represent him on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no supplemental brief from defendant.

Applying the Sixth Amendment 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] (Apprendi) 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. (Id. at p. 490 [147 L.Ed.2d at p. 455].)

In People v. Black (2005) 35 Cal.4th 1238, 1244, however, the California Supreme Court held “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” This holding is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We note, however, that a petition for certiorari is pending in Black and the United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted sub nom., Cunningham v. California, Feb. 21, 2006, No. 05-6551, ___ U.S.___.

We also note that, in any event, the rule of Apprendi and Blakely does not apply when a defendant’s prior crimes are used to increase his penalty for a new offense. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455]; accord, United States v. Booker (2005) 543 U.S. 220, 231 [160 L.Ed.2d 621, 641-642].) Here, the trial court stated it imposed the upper term based upon defendant’s unsatisfactory performance on parole and because defendant was on probation or parole when the crime was committed. Although neither of these factors is, precisely speaking, the fact of a prior conviction, both presuppose one or more prior convictions; thus, when the court relied on them, it was necessarily also relying on the fact of defendant’s prior convictions.

However, because we have reviewed this case pursuant to People v. Wende, supra, we acknowledge the issue of whether imposition of the upper term based on aggravating factors that were neither admitted by defendant nor found by a jury violated defendant’s constitutional rights under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] to preserve it for federal review.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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^[1] People v. Harvey (1979) 25 Cal.3d 754.