P. v. Cabrellis

Filed 9/19/07 P. v. Cabrellis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

On March 19, 2007, the United States Supreme Court granted a petition for writ of certiorari filed by defendant Ceariaco Cabrellis, vacated the judgment, and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Cunningham concluded that Californias determinate sentencing law violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence. (Id. 127 S.Ct. at p. 870.) Following the California Supreme Courts recent decision in People v. Black (2007) 41 Cal. 4th 799 (Black II), we affirm the judgment.

Background

In July 2006, we issued an opinion affirming defendant Ceariaco Cabrellis convictions for a variety of offenses relating to the robbery at gunpoint of an electronics store in Berkeley. (See People v. Sanders et al. (July 11, 2006, A105385) [nonpub. opn.].) Relying on People v. Black (2005) 35 Cal.4th 1238, certiorari granted and judgment vacated by Black v. California (2007) 549 U.S. ___ [127 S.Ct. 1210], we rejected defendants argument that his right to jury trial was violated by the imposition of the upper term for the robbery conviction and consecutive prison terms on the other counts based on the aggravating factors found by the trial court.

Pursuant to the United States Supreme Courts March 2007 mandate, we recalled our October 2006 remittitur as to defendant Cabrellis. We have reexamined our initial opinion, which we incorporate by reference, and have received supplemental briefing from the parties.

Discussion

In Black II, the California Supreme Court reexamined the state determinate sentencing law in light of Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. Black II noted that in Blakely v. Washington (2004) 542 U.S. 296, the high court explicitly recognized the legitimate role of judicial factfinding in indeterminate sentencing, in which the judge may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. (Black II, supra, 41 Cal.4th at pp. 812-813.) Accordingly, Black II concluded that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813.) The Court added that [t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense do not pertain to whether the defendant has a legal right to a lesser sentenceand that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Ibid.) Because the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term under Californias determinate sentencing law, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum for Sixth Amendment purposes. (Ibid.)

Applying those conclusions to the facts before the Court, Black II noted that the United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. . . . recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Black II, supra, 41 Cal.4th at p. 818 [citations omitted].) The Court held that the defendants criminal history alone rendered him eligible for the upper term sentence, stating defendants criminal history and the jurys finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence. . . . (Id. at p. 820, italics added.)

Similarly, in the present case the trial court relied on recidivism factors in sentencing defendant to the upper term of five years for the Penal Code section 211 conviction for second degree robbery. In selecting the upper term, the trial court cited the following factors relating to defendants record: (1) defendants prior convictions as an adult are numerous; (2) defendant has served prior prison terms or a prior prison term, and (3) defendants prior performance on probation and parole was unsatisfactory. Defendant acknowledges that the trial court relied on recidivism factors in imposing the upper term. Under Black II, supra, 41 Cal.4th 799, these were permissible court findings for Sixth Amendment purposes, and the findings rendered defendant eligible for the upper term. Defendant suffered no Sixth Amendment violation by the trial courts exercise of its discretion in selecting the upper term.[1]

Disposition

The judgment is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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[1] Defendant also contended on appeal that imposition of consecutive prison terms violated the Sixth Amendment. Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], did not address that issue, so it is not within the scope of our review on remand. In any event, Black II concluded that imposition of consecutive terms does not implicate a defendants Sixth Amendment rights. (Black II, supra, 41 Cal.4th at pp. 820-823.)