P. v. McEvoy
Filed 1/3/08 P. v. McEvoy CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, Plaintiff and Respondent, v. JASON DOUGLAS MCEVOY, Defendant and Appellant. | C054513 (Super. Ct. No. 05F07819) |
In this appeal, we hold that by relying on California Rules of Court, rule 4.421(a)(7) to aggravate defendant Jason Douglas McEvoys sentence, the trial courts imposition of the upper term was properly based on factual findings made by the jury. Accordingly, defendants Sixth Amendment right to a jury trial was not violated. We shall affirm the trial courts judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND[1]
A jury found defendant guilty of two counts of oral copulation with a minor under the age of 18 (Pen. Code, 288a, subd. (b)(1))[2]and three counts of annoying or molesting a minor under the age of 18 ( 647.6). The court sentenced defendant to three years eight months in state prison, to run consecutively to one year in local custody.
On appeal, defendant claims that because the trial court relied on facts not submitted to a jury or admitted by defendant, imposition of the upper term and consecutive sentences violated the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. We reject defendants claims.
II
DISCUSSION
Defendant first contends the trial court erred in imposing the upper term without submitting the aggravating factors to a jury. Apprendi held 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. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
The trial court imposed the upper term of three years on count one, one-third the middle term on count two, and one year each on counts three and four, to run concurrently to the terms imposed on counts one and two. In imposing the upper term, the court cited several aggravating factors, one of which was the fact that the jury convicted defendant of crimes for which he could have received consecutive terms but did not. (Cal. Rules of Court, rule 4.421(a)(7) (hereafter rule 4.421(a)(7).)
Blakely described three types of facts that a trial judge may properly use to impose an aggravated sentence: (a) the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301 [at p. 412]); (b) facts reflected in the jury verdict (id. at p. 303 [p. 413], italics omitted); and (c) facts admitted by the defendant (ibid., italics omitted). Unlike other facts relating to the crime listed in California Rules of Court, rule 4.421(a), the conviction of other crimes for which consecutive sentences could have been imposed is a fact reflected in the jury verdict, i.e., the jury found defendant guilty, beyond a reasonable doubt, of more than one offense.
As a matter of law, the trial court could have ordered the terms for the convictions on counts three and four to run consecutively to the convictions on counts one and two. ( 669, 1170.1, 654.) Therefore, the factual basis for imposing the upper term is the jurys finding, beyond a reasonable doubt, that defendant committed multiple crimes.
[I]mposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) Having found one of the aggravating factors relied on by the court to be legally sufficient, we find no error.
Defendants second claim, that the court erred in imposing consecutive sentences on counts one and two without submitting the issue to a jury is similarly flawed: The determination whether two or more sentences should be served in this manner is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Black II, supra, 41 Cal.4th at p. 823, quoting People v. Black (2005) 35 Cal.4th 1238, 1264.) Accordingly, we reject this claim as well.
DISPOSITION
The judgment is affirmed.
BLEASE , J.
We concur:
SCOTLAND , P. J.
DAVIS , J.
Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Property line Lawyers.
[1] The details of defendants crimes are not relevant to his claims on appeal.
[2] Further undesignated statutory references are to the Penal Code.
