P. v. Castonon
Filed 3/18/08 P. v. Castonon CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. VICTOR CASTANON, Defendant and Appellant. | B195131 (Los Angeles County Super. Ct. No. BA302017) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Ruffo Espinosa, Jr., Judge. Affirmed.
Michele A. Douglass, 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, Susan Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
A jury convicted Victor Castanon of second degree robbery, and he admitted in a bifurcated proceeding he hadpreviously served two separate prison terms for felonies.[1] He was sentenced to an aggregate state prison term of seven years, the upper term of five years for the robbery, plus an additional two years for the prior prison term enhancements. On appeal Castanon contends the imposition of the upper term for robbery based on factual determinations made by the court, not the jury, violated his 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, after indicating its intention to impose a seven-year sentence and giving counsel an opportunity to argue, the court sentenced Castanon to the upper term of five years for robbery plus one year for each of the two prior prison term enhancements. Explaining its selection of the upper term, the court stated: The reason I am imposing the high term is simply for the fact that he was on parole at the time the crime was committed. He has a prior prison term. He has numerous convictions.[[2]] Hes got two felony convictions. The crime, whether it involved a gun or not, is in and of itself a robbery, and that is a violent crime. The court also indicated it had considered the fact the victim was a minor and particularly vulnerable and noted theres nothing mitigating about [Castanons] conduct or his record or his past performance.
DISCUSSION
In Cunningham, supra, 549 U.S. ___ the United States Supreme Court reaffirmed Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and Blakely, supra, 542 U.S. 296, overruled the California Supreme Courts 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 to the extent it authorizes the trial judge to find facts (other than a prior conviction) by a preponderance of the evidence 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 __ [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), the 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.) The courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the trial court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional. (Id. at p. 815.)
Castanon testified on his own behalf during trial and admitted he was on parole at the time of the robbery. Castanons counsel confirmed that fact during the sentencing hearing. Under Black II, once Castanon admitted his parole status at the time of the offense, he was eligible for the upper term sentence (see Cal. Rules of Court, rule 4.421(b)(4)); and the trial court was authorized to impose that sentence whether or not it relied on any additional factors. (Black II, supra, 41 Cal.4th at p. 813.)[3] Accordingly, Castanons upper term sentence did not violate his constitutional right to a jury trial.
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] The jury found not true the special allegation Castanon had used a firearm in committing the robbery and also found him not guilty of assault with a firearm, charged in two separate counts.
[2] The probation officers report stated Castanon had a misdemeanor conviction in 1999 for driving without a valid license and was granted summary probation. He had a felony conviction in 2000 for transporting or selling marijuana and received three years formal probation. After repeated probation violations, the court revoked probation, sentenced Castanon to a two-year state prison term, but suspended imposition of sentence. In March 2004, after Castanon had failed to appear for a hearing, the court imposed the previously stayed state prison sentence. Castanon was paroled on an unknown date. He had a felony burglary conviction in May 2005, for which he was sentenced to state prison and paroled in January 2006. Castanon committed the present robbery on May 1, 2006.
[3] Under Black II, moreover, Castanon had no right to a jury trial as to whether his prior convictions are numerous or of increasing seriousness, another aggravating factor identified by the trial court. (Black II, supra, 41 Cal.4th at p. 820.)
