P. v. Reyes

Filed 9/27/07 P. v. Reyes CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Wade D. Olson, Commissioner. Affirmed.

Murray A. Rosenberg, 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, Lawrence M. Daniels and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

INTRODUCTION

Defendant Marciano Eleodoro Reyes appeals from a judgment of conviction following a guilty plea to one count of mayhem (Pen. Code,  203). He challenges the imposition of the upper term sentence, eight years in state prison, after his probation was revoked.

On appeal, defendant claims the trial court erred in imposing an upper term sentence based upon facts not found true by the jury. We affirm.

FACTS

On January 28, 2005, defendant pled guilty to one count of mayhem, a felony (Pen. Code,  203), after being advised that a possible consequence of the plea was the maximum penalty, which meant being sent to state prison for eight years. On October 27, 2005, the trial court suspended imposition of sentence and placed defendant on three years formal probation on certain terms and conditions, including that he obey all laws and serve 364 days in the county jail. Defendant was credited with 368 days previously spent in custody, and accordingly he was released, rather than remanded at the sentencing hearing.

In July 2006, defendant was arrested and charged with felony possession of a controlled substance in violation of Health and Safety Code section 111350, subdivision (a), in Los Angeles County Superior Court case number KA075780. On August 15, 2006, a probation violation hearing in the instant case, number TA076739, was held concurrently with the preliminary hearing in case number KA075780. The trial court found there was sufficient evidence of defendants actual or constructive possession of the drugs to hold defendant to answer in case number KA075780. Based upon its finding in case number KA075780, the trial court found defendant in violation of the terms and conditions of his probation in the instant case, number TA076739.

At the probation revocation sentencing hearing on August 29, 2006, the trial court stated that defendant continues in his criminal behavior, committing another crime each time he has been on probation, and accordingly, defendants prior performance on probation has been totally unsatisfactory. The court continued by saying that defendants crimes have become more serious. Based upon these factors in aggravation, and finding no mitigating factors, the trial court denied probation and imposed the upper term sentence of eight years in state prison.

DISCUSSION

Defendant contends that imposition of the upper term sentence was unconstitutional under Cunningham v. California (2007) ____ U.S. ____ [127 S.Ct. 856] (Cunningham). Defendant asserts that in Cunningham, the United States Supreme Court held that Californias determinate sentencing law violates the Sixth Amendment jury trial guarantee and the Fourteenth Amendments Due Process clause insofar as it allows judges to impose an upper term sentence on the basis of facts (other than prior convictions) that were not found by the jury beyond a reasonable doubt. (127 S.Ct. at pp. 868-871.) Defendant also claims that Cunninghams recidivism exception for prior convictions does not apply in the instant case. (Ibid.) Specifically, defendant contends that imposition of the upper term sentence was unconstitutional, in that it was based upon findings made by the trial court, not a jury, of two aggravating factorsthat defendants performance on parole or probation was unsatisfactory and that he was committing crimes of increasing seriousness. (Ibid.) We disagree with defendants contention and affirm the judgment.

On remand pursuant to Cunningham, the California Supreme Court recently held in People v. Black (2007) 41 Cal.4th 799 at page 816 that to the extent there are proper recidivist factors on which the trial court relied, a defendant is eligible to receive the upper term sentence without an additional jury finding, and imposition of that sentence does not violate his Sixth Amendment right to a jury trial. In the instant case, one of the aggravating factors articulated by the trial court was that defendant continues in his criminal behavior, committing another crime each time he has been on probation, and accordingly, defendants prior performance on probation has been totally unsatisfactory. Under Black, these determinations may properly be made by the trial court, rather than a jury, in that they require consideration of only the number, dates, and offenses of the prior convictions and sentencing information from court records, which is a task more typically and appropriately undertaken by a trial court. (Black, supra, at pp. 816, 819-820.)

The record of defendants criminal history shows he had two convictions for offenses occurring in less than a year prior to his conviction for mayhem in the instant case. Defendant was on summary probation for each prior conviction at the time of his conviction in the instant case. That defendants prior convictions are numerous and that his prior performance on probation was unsatisfactory constitute two of the aggravating circumstances set forth in the California Rules of Court, rule 4.421. (Id. at rule 4.421(b)(2) & (5).) They are recidivist factors justifying imposition of the upper term sentence. (People v. Black, supra, 41 Cal.4th at p. 818; People v. Yim (2007) 152 Cal.App.4th 366, 369; People v. Morton (2007) 152 Cal.App.4th 323, 336.) The existence of only a single aggravating circumstance is sufficient to render defendant eligible for the upper term sentence. (Black, supra, at p. 813.) Defendants upper term sentence consequently is constitutional. (Id. at p. 816.)

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

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