P. v. Sears

Filed 8/11/08 P. v. Sears 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yuba)

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This case returns to us after remand for resentencing.

A jury convicted defendant Robert Leon Sears of abuse of a cohabitant (Pen. Code, 273.5, subd. (a)),^[1]making criminal threats ( 422), and false imprisonment ( 236). In his first appeal, defendant contended (1) imposing the upper term of imprisonment on the abuse charge violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; and (2) section 654 prohibits the imposition of consecutive sentences on the criminal threats and false imprisonment offenses because those two crimes were incident to a single objective. We agreed defendants sentence for making criminal threats should be stayed and otherwise affirmed the judgment. (People v. Sears (Sept. 26, 2006, C050732) [nonpub. opn.].)

Thereafter, defendant filed a habeas corpus petition (C055575), claiming the trial courts imposition of the upper term violated his right to jury trial under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). This court issued an order to show cause, returnable before the superior court, which granted defendants petition, and set the matter for resentencing.

On remand, the trial court again imposed the upper term of imprisonment for abuse of a cohabitant, indicating that its selection of the upper term was based on Mr. Sears multiple prior convictions [and], his multiple violations of both probation and parole grants.^[2]

Defendants sole contention in this appeal is that imposing the upper term violated his Sixth Amendment right to a jury trial. We find no error and affirm the judgment.

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, 549 U.S. at p. ___ [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.)

In People v. Black (2007) 41 Cal.4th 799 (Black II), 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.]^[3] (Id. at pp. 819-820, fn. omitted.) 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 multiple prior convictions and had multiple unsatisfactorily performances on probation and parole. The trial courts reliance on these factors did not run afoul of Cunningham or defendants right to a jury trial.^[4]

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

DAVIS , Acting P. J.

ROBIE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] By the time defendant committed these crimes, he had a criminal history spanning 20 years that included several juvenile adjudications, adult convictions of eight misdemeanors and two felonies, six parole violations, and eight probation violations.

^[3] Defendant acknowledges this court is bound by the decision in Black II. (AutoEquity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He nonetheless challenges that case -- and the California Supreme Courts decision in People v. Sandoval (2007) 41 Cal.4th 825 -- in order to preserve the issue for federal court review.

^[4] Because we conclude there was no Cunningham error, we need not analyze whether any such error was harmless. (See People v. Sandoval, supra, 41 Cal.4th at p. 839.)