P. v. Blume

Filed 3/18/08 P. v. Blume CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Arthur H. Jean, Jr., Judge. Affirmed.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

A jury convicted Jessica Blume of petty theft, and she admitted in a bifurcated proceeding she had suffered a prior theft-related conviction and had served a separate prison term for a felony. The trial court sentenced Blume to an aggregate state prison term of four years, the upper term of three years for petty theft with a prior theft-related conviction, plus one year for the prior prison term enhancement. On appeal Blume contends imposition of the upper term sentence based on a factual determination made by the court, not the jury, violated her federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At the sentencing hearing defense counsel urged the trial court to reduce Blumes felony conviction to a misdemeanor or to sentence her to the lower term (16 months). Defense counsel acknowledged Blume was on parole when she committed the petty theft, but argued the crime was neither sophisticated nor violent; and the merchandise she stole (a watch) was of little value. The prosecutor, on the other hand, asked the court to impose the middle term sentence (two years) based on Blumes criminal history. In 2000 Blume had been convicted of transporting or selling marijuana and was placed on three years formal probation. In January 2005 she was convicted of petty theft and was granted summary probation. Later that month, she was convicted of possession of a controlled substance and placed on three years formal probation. In August 2005 Blumes probation was revoked, and she was sentenced to 16 months in state prison following her arrest for possession of a controlled substance. Blume committed the current offense on September 16, 2006 while on parole.

The trial court declined to reduce Blumes felony conviction to a misdemeanor.

Citing her unsatisfactory performance on parole an aggravating factor, the court then imposed the upper term sentence of three years (see Cal. Rules of Court, rule 4.421(b)(5) [defendants prior performance on parole was unsatisfactory]), plus one year for the prior prison term enhancement.

DISCUSSION

In Cunningham, supra, 549 U.S. at page ___ [127 S.Ct. 856] the United States Supreme Court reaffirmed Blakely, supra, 542 U.S. 296, overruled the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) and held Californias determinate sentencing law violates a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by authorizing the trial judge to make factual findings (other than the existence of a prior conviction) that subject a defendant to the possibility of an upper term sentence. This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, at p. ___ [127 S.Ct. at pp. 863-864].)

Following its decision in Cunningham, the United States Supreme Court vacated the judgment in Black I, supra, 35 Cal.4th 1238, and remanded the case to the California Supreme Court for further consideration in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II), decided while Blumes appeal was pending in this court, the California Supreme Court held the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities renders a defendant eligible for the upper term sentence under the determinate sentencing law, so that any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Id. at p. 812.)

In addition, relying on United States Supreme Court decisions holding the trial court may increase the penalty for a crime based upon the defendants prior convictions without submitting that question to a jury (see Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [118 S.Ct. 1219, 140 L.Ed.2d 350] [recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence]), the Black II Court held that aggravating factors relating to a defendants prior convictions are beyond the reach of Cunningham. As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include 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. . . . [] . . . This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. (Black II, supra, 41 Cal.4th at pp. 819-820.)

Although the Black II Court endorsed a broad construction of the prior conviction or recidivism exception to the Sixth Amendment jury trial requirement for sentencing factors (see Black II, supra, 41 Cal.4th at p. 820), it did not expressly address whether under that exception the trial court was permitted to determine a defendants prior performance on probation or parole was unsatisfactory -- the aggravating factor relied upon by the trial court in sentencing Blume to the upper term.^[1] Nonetheless, the Courts analysis of that exception in Black II leaves little doubt in our minds that the trial court need not submit to the jury the question of the defendants status as a parolee at the time the new offense was committed or the determination that commission of a new offense while on parole is unsatisfactory. (See People v. Guess (2007) 158 Cal.App.4th 283, 302 [defendants status as being on probation fits within the broad construction of prior conviction given by Black II]; People v. Yim (2007) 152 Cal.App.4th 366, 371 [defendants status as a parolee and his prior unsatisfactory performance on parole as aggravating factors can be determined by court].)

Even if, notwithstanding defense counsels concession Blume was on parole at the time of the new offense, this aggravating factor should have been submitted to the jury under Cunningham, however, the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] . . . . (People v. Sandoval (2007) 41 Cal.4th 825, 838.) Based on the record in this case, we are confident a jury would necessarily have found true beyond a reasonable doubt that Blumes performance on parole was unsatisfactory.

In sum, Blumes unsatisfactory performance on parole, properly identified by the trial court as an aggravating factor, rendered her eligible for the upper term sentence imposed. Blumes federal constitutional right to a jury trial was not violated by the courts sentencing decision.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

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^[1] Whether the recidivism exception applies to the circumstances described in California Rules of Court, rule 4.421(b)(4) (defendant was on probation or parole when crime was committed) and (b)(5) (defendants prior performance on probation or parole was unsatisfactory) is currently pending before the Supreme Court in People v. Towne, S125677 (review granted July 14, 2004; supplemental briefing ordered Feb. 7, 2007).