Counsel for defendant filed an opening brief in which he raised no issues and asked this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents that defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. We have conducted the review requested by counsel and have identified certain possible issues for which we have asked counsel for both sides to file briefing. They have done so and we have reviewed those issues and found that the trial court acted within its allowed discretion. We affirm.

Background

Pursuant to a first amended complaint, it was alleged that on or about October 28, 2007, the defendant did willfully and unlawfully inflict corporal injury resulting in a traumatic condition upon JANE DOE, who was the mother of defendants child. It was further alleged in the complaint that defendant personally inflicted great bodily injury upon the victim under circumstances involving domestic violence.

According to the felony presentence report prepared by the probation department, based in large part upon the report of the investigating officers interview with the victim, defendant administered a severe beating which left the mother of his children bleeding from the head, very swollen and with lacerations that needed numerous stitches. The incident occurred in front of a five-year-old son, who ran and hid under his bed. Defendant attempted unsuccessfully to persuade the victim to lie by claiming to have fallen down the stairs, so that he would not have to go to prison.

The first amended complaint additionally alleged a prior conviction for terrorist threats and corporal injury to spouse/cohabitant ( 422/273.5) within seven years, which qualified as a strike.

After completing a detailed written waiver of constitutional rights prior to entry of guilty or no contest plea, which indicated admission of the principal charge and enhancements of the complaint and recited that it would be an open plea with a maximum term of 15 years, defendant entered his no contest plea in open court. The waiver document that he initialed contains the statement, All promises made to me are written on this form, or stated here in open court. There have been no other promises, or suggestions made in order to get me to enter this/these plea(s). The only promise contained in the form was that the 667 (a) 5 yr prior enhance[ment] would be dismissed, which it was.

After reviewing the presentence report and several letters indicating fear by the victim and her family of future violence, the trial court selected the upper term for sentencing the domestic violence violation, stating: The reason the Court is selecting the aggravated term for Count 1, the 10 years, is because the Court does feel that the crime involved acts disclosing a high degree of callousness, knowing he had inflicted an injury upon the victim which likely required medical attention, he fled the scene without rendering appropriate aid. [] The Court also feels that he has engaged in violent conduct which indicates a serious danger to society. His prior convictions, both as a juvenile and as an adult, sustained petitions as a juvenile and adult convictions, are numerous. He has served a prior prison term which was not the subject of the enhancement as an enhancement in this particular case. [] The Court does feel that the aggravated term of 10 years for Count 1, the 273.5, given his prior conviction for a similar offense as a felony, is appropriate.

As to the enhancement, the trial court also selected the aggravated term (five years) stating: The reason the Court is selecting this aggravated enhancement term is that he was on state parole when the crime was committed; his prior performance on juvenile probation and adult probation, conditional sentences, CYA parole, state parole was unsatisfactory. In fact, he was on parole at the time he committed this new offense. And pursuant to [section] 136.1[, subdivision] (f), the Court does consider that the defendant attempted to intimidate the victim during subsequent telephone conversations from the Sonoma County Jail. And also the fact [that] there was a minor present at the time the offense was committed.

In his request for a certificate of probable cause, the defendant states, amongst other things, that he was told that I would receive the mid-term with 8 to 11 years, but I got 15 years instead. He also states, however, that [t]his was a open plea.

Discussion

A thorough review of the record reveals no evidence whatsoever which suggests any promise as to the sentencing other than that there would be no addition pursuant to section 667, subdivision (a)(1). That promise was complied with. Further, the statement that defendant was told of another sentence, if interpreted as a claim of promise, is impeached by the defendants written admission that there was no such promise. The trial court was therefore not bound by any commitment to sentence other than as allowed by law.

Defendant further contends that by selecting the upper term for sentencing, the trial court violated his constitutional rights to a jury trial established by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 850, 127 S.Ct. 856] (Cunningham). In Apprendi it was held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Apprendi, at p. 490.) In Cunningham this rule was applied to Californias sentencing scheme and it was determined that the presumption of the middle term provided by former section 1170, subdivision (b) made that term the maximum that could be imposed in the absence of a jury finding of an aggravating factor. (Cunningham, 127 S.Ct. at p. 868.) As defendant points out, the decision in People v. French (2008) 43 Cal.4th 36 requires that these rules be applied where a defendant has entered a guilty or no contest plea unless he has admitted the aggravating factors being used. (Id. at p. 48.)

In People v. Black (2007) 41 Cal.4th 799 (commonly Black II), it was held, analyzing the decision in Cunningham, supra, 127 S.Ct. 856, that if there was a single aggravating factor that either was found by the jury or did not require a jury trial (e.g., a prior conviction), then the trial judge was free to adopt the upper term because the defendant was eligible for that term in a constitutional sense. In so holding, the court stated that the trial court could make additional factual findings (not made by the jury) regarding the existence of additional aggravating circumstances which may increase the likelihood of upper term selection and that such judicial factfinding is not unconstitutional. (Black II, at p. 815.)

On the same day that it decided Black II, supra, 41 Cal.4th 799, the court decided People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In that action the court concluded there was no single aggravating fact that could avoid jury determination and that the failure to submit such factors to the jury was not harmless error. (Id. at p. 843.) It determined, however, that the amendment of Californias sentencing scheme by what is commonly referred to as Senate Bill No. 40 (Stats. 2007, ch. 3, enacting Sen. Bill No. 40 (2007-2008 Reg. Sess.)) deleted the presumption as to the middle term and gave to the sentencing judge the full range of options such that the upper term became the statutory maximum. (Id. at p. 845.) By this holding, California trial judges are free to use any appropriate aggravating factors to select amongst the three sentences provided by the statutory triad.

As counsel for defendant acknowledges, this court is bound by the Black II and Sandoval decisions[] (Black II, supra, 41 Cal.4th 799; Sandoval, supra, 41 Cal.4th 825) under the authority of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. Accordingly, we conclude that there was no constitutional error in the trial judge selecting the upper term for the felony violation of section 273.5.

Defendant also contends that the use of the upper term of the triad for the great bodily injury enhancement is a constitutional violation because neither Senate Bill No. 40, nor any other legislation, has modified the sentencing rules for that enhancement. As was recognized in People v. Lincoln (2007) 157 Cal.App.4th 196, 205, there was no modification by the Legislature as to triads for enhancements, and section 1170.1, subdivision (d) continues to direct a presumptive use of the middle term. Accordingly, under the authority of Cunningham, supra, 549 U.S. 270, a trial court may not constitutionally use the upper term for an enhancement unless an aggravating factor is either admitted, found by a jury, or involves a prior conviction.

Here, the first named factor recited by the trial judge for selecting the upper term in sentencing the enhancement was that the defendant was on state parole when he committed the subject offense. Our Supreme Court, in People v. Towne (2008) 44 Cal.4th 63, 76, 82, has specifically held that a finding that a defendant was on probation or parole when committing an offense does not require a jury determination. Thus, under the holding in Black II, supra, 41 Cal.4th 799 that a single factor not needing a jury finding is sufficient to meet constitutional requirements, the trial judge was entitled to select the upper term for the enhancement. We find in the record no evidence that he abused his discretion in doing so.

Finally, the defendant claims that his trial counsel was ineffective for failing to object to the upper term sentences upon constitutional grounds. In light of the foregoing analysis, this claim has no merit.

Disposition

The judgment of the trial court is affirmed in all respects.

_________________________

FLINN, J.*

We concur:

_________________________

MARCHIANO, P. J.

_________________________

SWAGER, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[] The analysis in Sandoval, supra, 41 Cal.4th 825, as to retroactivity of Senate Bill No. 40 is not implicated in this case as the crime charged occurred after the March 30, 2007, effective date of the legislation.

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