P. v. Hughes

Filed 10/18/07 P. v. Hughes CA1/5

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Joseph Edward Hughes was tried before a jury and convicted of six counts of lewd and lascivious conduct with a child under 14, along with findings that he had committed acts of substantial sexual conduct as to two of the counts. (Pen. Code,  288, subd. (a), 1203.066, subd. (a)(8).) The trial court imposed an aggregate prison sentence of 18 years, consisting of the eight-year upper term on one of the counts, plus a consecutive two-year term (one-third the middle term) on each of the five remaining counts. In our original unpublished opinion filed on April 21, 2006, we affirmed the judgment and sentence. One of the arguments raised and rejected was a claim that the upper and consecutive terms violated Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), because they were based on factors that were neither admitted by appellant nor found true by the jury.

The United States Supreme Court granted appellants petition for writ of certiorari on the Apprendi-Blakely issue. On February 20, 2007, that court vacated the judgment and remanded the case to us for further consideration in light of its decision in Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham). We requested and received further briefing from the parties on the effect of Cunningham and two recent California Supreme Court decisions interpreting that case: People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In light of these decisions, we conclude the sentence imposed does not violate the federal constitution and we again affirm the judgment.[1]

DISCUSSION

In Apprendi and Blakely, the United States Supreme Court concluded that under the Sixth Amendment of the federal Constitution, any factor increasing the penalty for a crime beyond the statutory maximum is akin to an element of the offense and must be submitted to the jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at pp. 303-304.) In Cunningham, the court analyzed Californias determinate sentencing law (DSL) and concluded that under the three-tiered sentencing structure applicable to most offenses, the middle term was the statutory maximum because the upper term could not be imposed absent additional factual findings. (Cunningham, supra, 127 S.Ct. at pp. 868, 871; see also Pen. Code, 1170, subd. (b).) Cunningham held that the DSL ran afoul of the principles set forth in Apprendi and Blakely to the extent it allowed the imposition of an upper term sentence based on aggravating factors that were found true by the trial court using only a preponderance of the evidence standard. (Cunningham, supra, at p. 871, disapproving Peoplev.Black (2005) 35 Cal.4th 1238, judg. vacated and cause remanded sub nom. Black v. California (2007) 127 S.Ct. 1210.)

The United States Supreme Court has recognized two exceptions to a defendants right to a jury trial on factors used to increase the sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Sandoval, supra, 41 Cal.4th at pp. 836-837.) This later exception to Apprendi-Blakely-Cunningham was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224, and has been construed to apply to recidivist factors extending beyond the bare fact of a prior conviction. (Black II, supra, 41 Cal.4th at p. 819; People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.)

In this case, the trial court relied on three aggravating factors when it selected the upper term: that appellants prior convictions and juvenile adjudications were numerous and of increasing seriousness, that appellant was on probation when the current offenses were committed, and that appellants prior performance on probation or parole had been unsatisfactory. Although the scope of the recidivism exception has not been comprehensively defined, our Supreme Court has concluded that the sentencing court may decide whether a defendants prior convictions are numerous and of increasing seriousness, thus rendering the defendant eligible for an upper term sentence. (Black II, supra, at pp. 818-820.) We are bound by that decision and follow it here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Because the trial court properly determined that appellants prior criminal history was an aggravating circumstance, the upper term was the statutory maximum and appellant was not entitled to a jury determination of additional facts relied upon by the court at sentencing. [A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding 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. (Black II, supra, 41 Cal.4th at p. 812.) It is unnecessary to determine whether the additional aggravating factors cited by the courtcommission of the current offense while on felony probation and unsatisfactory performance while on probationfall within the recidivist exception to the rule of Apprendi-Blakely-Cunningham, or must instead be submitted to the jury.[2]

Appellant recognizes that we are bound by Black II, which held that the recidivism exception extends to a finding that prior convictions are numerous or of increasing seriousness, and which further held that a single valid aggravating factor is sufficient to render the defendant eligible for an upper term sentence. He argues that Black II was wrongly decided and is distinguishable from his case because the trial court cited his prior juvenile history as well as his prior adult convictions when it imposed the upper term. Appellant contends the recidivism exception does not apply to prior juvenile adjudications, because there is no right to a jury trial in such proceedings.

We need not decide whether the recidivism exception to the Apprendi-Blakely-Cunningham rule encompasses juvenile adjudications as well as prior adult convictions, though we note that the issue is pending before the California Supreme Court in People v. Nguyen (S154847) formerly published at 152 Cal.App.4th 1205. The probation report in appellants case described only five prior offenses, all of which resulted in adult convictions, and this was sufficient to support the numerous and of increasing seriousness factor without resort to appellants juvenile history. Moreover, we can say beyond a reasonable doubt that a jury presented with evidence of any of the three aggravating factors in this case would have returned true findings on those factors, rendering any error by the sentencing court harmless. (See Washington v. Recueno (2006) 126 S.Ct. 2546; Sandoval, supra, 41 Cal.4th at pp. 838-839.)

In his original briefing, appellant argued that facts relied upon by the court to support the imposition of a consecutive sentence were also subject to the rule of Apprendi and Blakely. He does not renew this claim in the supplemental briefing filed after remand from the United States Supreme Court. In any event, Cunningham dealt only with upper term sentencing under the DSL, and the California Supreme Court has specifically rejected the argument that its rule extends to consecutive sentencing. (Black II, supra, 41 Cal.4th at pp. 821-823.)

DISPOSITION

The judgment is affirmed.

REARDON, J.*

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

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[1] Our published decision in People v. Hughes (Apr. 21, 2006, A107671) continues to govern the disposition of issues not related to the Cunningham issue addressed in our present opinion.

[2]The issue of whether a judge may evaluate a defendants performance on probation and parole for purposes of imposing the upper term is currently pending before the California Supreme Court in People v. Towne (S125677).

* Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.