California Court of Appeal Jun 21, 2007 No. B189955Published
Before: Yegan
Opinion
YEGAN, J.
Yano Yim appeals after his conviction, by jury, of second degree burglary of a vehicle. (Pen. Code, §§ 459, 460, subd. (b).)
1
Appellant waived his right to a jury trial on whether he had sustained two prior felony convictions for which he served prison terms. (§ 667.5, subd. (b).) The trial court found these allegations to be true. It sentenced appellant to prison for an aggregate term of four years: the upper term of three years on the second degree burglary plus one year for one of the prior prison terms served. The trial court struck the remaining prior prison term allegation. Appellant contends imposition of the upper term was an improper “dual use of facts.” He also argues error based on
Cunningham
v.
California
(2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 865], We disagree. The trial court imposed the upper term for two reasons only: Appellant was on parole when he committed the new offense and he had performed poorly on parole. As we shall explain, these are recidivism-related, factors that need not be found by a jury.
(Apprendi v. New Jersey
(2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348].)
Facts and Procedural History
Appellant used a screwdriver to open the door of a parked car. He took a bottle of ice tea, a sunglasses case, a photograph and some change from the car. A neighbor saw the break-in and notified the police. Appellant was standing across the street, drinking a bottle of ice tea, when the police arrived minutes later. The officer called to appellant, who bent down and then stood back up before walking over to him. The neighbor identified appellant as the burglar. Appellant also waived his
Miranda
rights
(Miranda v. Arizona
(1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]) and admitted breaking into the car. Another officer found a screwdriver on the pavement near where appellant had been standing.
As indicted, the trial court found the prior convictions resulting in prison terms to be true. In 1999, appellant was sentenced to 16 months in state prison for a second degree burglary. He was on parole from that sentence when, in 2004, he committed another second degree burglary. He was again sentenced to 16 months in state prison and was released on parole in May 2005. Appellant was on parole when he committed the current offense, also a second degree burglary, in September 2005.
At the sentencing hearing, the trial court found two aggravating circumstances to be true: appellant was on parole when he committed the new offense and his performance on parole was unsatisfactory. The trial court struck the 1999 prison prior. It imposed the upper term of three years for the second degree burglary and a one-year enhancement for the remaining prior prison term.
Dual Use of Facts
Appellant contends the trial court erred by making dual use of his prior conviction when it relied on his parole status and unsatisfactory performance on parole to impose both the upper term sentence and the prior prison term enhancement. (§ 1170, subd. (b).) He is incorrect. Parole status and performance on parole are distinct aggravating factors. Each is distinct from the aggravating factors of having numerous prior convictions and having served prior prison terms. (Cal. Rules of Court, rule 4.421(b).) A single aggravating factor may support a sentencing choice.
(1989) 48 Cal.3d 112 [255 Cal.Rptr. 813, 768 P.2d 32], on which appellant relies, is distinguishable. There, our Supreme Court found a violation of the dual use rule where the same prior prison term was used to enhance a defendant’s sentence pursuant to section 667.5, subdivision (b) and also to impose the upper term for the current offense. Here, the trial court imposed the upper term based not on appellant’s prior prison term, but on his status as a parolee and his unsatisfactory performance on parole. The upper term could have been imposed based on those factors even if appellant had remained free of prison custody for more than five years and was therefore ineligible for the prior prison term enhancement. (§ 667.5, subd. (b).)
Substantial Evidence
Appellant also contends there was no substantial evidence that he performed unsatisfactorily on parole. We disagree. Appellant was on probation
[370]
from a juvenile disposition when he committed the 1999 offense. He was on parole from the 1999 offense when he committed the 2004 offense, and he was on parole from that offense when he committed the present crime. Each time appellant has been granted probation or parole, he has reoffended. This constitutes unsatisfactory performance on parole. The trial court’s finding to that effect is supported by the record.
Cunningham
Error
Appellant contends the trial court violated his jury trial ¡ rights by imposing the upper term based on facts not found by a jury.
Cunningham v. California, supra,
549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856], held that California's determinate sentencing law violates the Sixth Amendment to the United States Constitution because it “authorizes the judge, not the jury, to find the facts permitting an upper term sentence . . . .” (549 U.S. at p._ [127 S.Ct. at p. 871].) As the Supreme Court explained, “the Federal Constitution’s 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.”
(Id.
at p._[127 S.Ct. at p. 860].)
The prior conviction exception referred to in
Cunningham
derives from the Supreme Court’s opinions in
Apprendi v. New Jersey, supra,
530 U.S. 466,
Blakely v. Washington
(2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] and
Almendarez-Torres v. United States
(1998) 523 U.S. 224 [140 L.Ed.2d 350, 118 S.Ct. 1219]. Courts in California and in other jurisdictions have construed
Apprendi,
“as requiring a jury trial except as to matters relating to ‘recidivism.’ ”
Thus, the exception to the jury trial right for prior convictions, “is not limited simply to the bare
fact
of a defendant’s prior conviction, but extends as well to the
nature
of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a ‘violent’ felony) that renders the defendant subject to an enhanced sentence.”
(People v. McGee
(2006) 38 Cal.4th 682, 704 [42 Cal.Rptr.3d 899, 133 P.3d 1054].) As the
McGee
court explained,
Apprendi
distinguishes between “sentence enhancements that require factfinding related' to the circumstance of the current offense, such as whether a defendant acted with the intent necessary to establish' a ‘hate crime’—a task identified by
Apprendi
as one for the jury—and the examination of
court records
pertaining to a defendant’s
prior conviction
to determine the nature or basis of the conviction—a task to which
Apprendi
did not speak and ‘the type of
[371]
inquiry that judges traditionally perform as part of the sentencing function.’
Here, the factors that supported imposition of the upper term sentence were recidivism related: appellant’s status as a parolee and his prior unsatisfactory performance on parole. These factors can be determined by reference to “court records” pertaining to appellant’s prior convictions, sentences and paroles. The mere recitation of his dates of conviction and releases on parole (see,
ante,
at p. 369) demonstrate, as a matter of law, that he committed new offenses while on parole. Thus he performed poorly on parole. (See
People v. Abercrombie
(2007) 151 Cal.App.4th 585 [parole status only as an aggravating factor may support upper term without a jury finding thereon].) No trial court or jury could rationally find otherwise. As a result, these factors fall within the
Apprendi
exception to the jury trial right. The trial court did not violate appellant’s Sixth Amendment rights by imposing the upper term without these findings by a jury.
The judgment is affirmed.
Gilbert, R J., and Perren, J., concurred.
1
All statutory references are to the Penal Code unless otherwise stated.
AI Brief
AI-generated · verify before citing
Holding. The court held that a trial court may impose an upper term sentence based on a defendant's parole status and unsatisfactory performance on parole without a jury finding, as these factors are recidivism-related and fall within the Apprendi exception. Furthermore, the court held that using these factors to impose an upper term does not constitute an improper dual use of facts when the enhancement is based on a separate prior prison term.
Issues
Whether the trial court's reliance on parole status and performance on parole to impose an upper term sentence constitutes an improper dual use of facts.
Whether the trial court violated the Sixth Amendment under Cunningham v. California by imposing an upper term based on facts not found by a jury.
Disposition. affirmed
Quotations verified verbatim against the opinion
“Parole status and performance on parole are distinct aggravating factors.”
“Here, the factors that supported imposition of the upper term sentence were recidivism related: appellant’s status as a parolee and his prior unsatisfactory performance on parole.”
“The trial court did not violate appellant’s Sixth Amendment rights by imposing the upper term without these findings by a jury.”