P. v. Pettway

Filed 12/14/07 P. v. Pettway 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

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During a birthday celebration defendant Victor Pettway struck his wife in the face with a shoe. Defendant pled guilty to corporal injury of a spouse with a prior domestic violence conviction. (Pen Code, 273.5, subds. (a), (e).) Sentenced to five years in prison, defendant appeals, contending imposition of the upper term violated his Sixth Amendment right to a jury trial. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Although the couple were separated, defendants wife invited him over to dinner to celebrate his birthday. Defendant drank two 24-ounce bottles of beer and with his wife consumed two bottles of champagne. Defendant was also taking Dilantin for a seizure disorder.

As the effects of the alcohol took hold, defendants wife told him he was no good and made negative comments about his family. Defendants wife stated defendant struck her in the face with a shoe as she came out of the bathroom, leaving visible marks on her face. Defendant stated his wife threw a glass at him, he threw a glass at her, and then he left the apartment.

An information charged defendant with corporal injury of a spouse with a prior domestic violence conviction. (Pen. Code,  273.5, subds. (a), (e).) Defendant pled guilty and admitted the truth of the prior conviction allegation. The trial court sentenced defendant to the upper term of five years. Defendant filed a timely notice of appeal.

DISCUSSION

Defendants sole contention on appeal is that under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the trial court erred in imposing the upper term based on facts that were neither found by a jury nor admitted by defendant. Defendant asserts the trial courts sentence violated his Sixth Amendment right to a jury trial, requiring reversal.

In Cunningham, the United States Supreme Court held that Californias procedure for selecting the upper terms in criminal cases ran afoul of a defendants Sixth and Fourteenth Amendment rights to a jury trial. The procedure gave to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence. (Cunningham, supra, 166 L.Ed.2d at p. 864.) Under Cunningham, the Federal Constitutions jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Ibid.)

Here, at sentencing, defense counsel objected to the upper term, citing Cunningham. The court imposed the upper term after setting forth six aggravating factors: vulnerability of the victim, defendants taking advantage of a position of trust, defendants history of violence, defendants numerous prior convictions, defendants prior prison term, and defendants prior unsatisfactory performance on probation or parole. The court found no factors in mitigation.

In People v. Black (2007) 41 Cal.4th 799, the California Supreme Court held that a trial court may impose an aggravated sentence based on the conclusion that the defendants prior convictions are numerous or of increasing seriousness. The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. . . . 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. [Citation.] (Id. at pp. 819-820.) In addition, violations of probation or parole are recidivism factors under which the trial court may impose the upper term. (People v. Yim (2007) 152 Cal.App.4th 366, 371.)

In imposing the upper term, the trial court relied on defendants criminal history. The court found defendant had numerous priors, had served a prior prison term, and had performed unsatisfactorily on probation or parole. The trial courts reliance on these factors did not run afoul of Cunningham or defendants right to a jury trial.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SIMS , Acting P.J.

BUTZ , J.

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