Opinion
Super. Ct. No. CM024470
BLEASE, Acting P.J.
Defendant Ray Lee Hammons appeals from the judgment and sentence imposed after he entered a guilty plea to one count of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and admitted the truth of a prior conviction for that same offense committed within the last seven years. (§ 273.5, subd. (e)(1).)
All further section references are to the Penal Code unless otherwise specified.
Finding the circumstances in aggravation outweighed the circumstances in mitigation, the trial court imposed the upper term of imprisonment of five years. In so doing, the court found two circumstances in mitigation and six circumstances in aggravation. As to those six, three of them are based upon defendant’s prior convictions and three are based on other facts found by the court.
On appeal, defendant argues that imposition of the upper term of imprisonment violated his right to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).
We find no error and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant entered a guilty plea and stipulated to a factual basis, no factual basis was placed on the record. We therefore rely on the facts outlined in the probation report.
This case arose out of an altercation between defendant and his girlfriend on February 5, 2006, at a Super Bowl party where defendant was drinking. Defendant and his girlfriend had been living together for eight months. While he was playing cards, his girlfriend slapped him lightly on the face to get his attention and told him she wanted to go home. He became enraged and pushed her over some chairs, off the front porch, and into a wooden fence. She fell and he struck her two or three times with a shovel. He continued to hit her with a plastic chair and when she stood up, he attempted to throw a computer monitor at her. He stopped his attack when law enforcement officers arrived.
Defendant was charged with one count of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) and with having previously been convicted of the same offense within the past seven years. (§ 273.5, subd. (e)(1).) The information also alleged that he used a deadly weapon, a shovel, in committing the offense (§ 12022, subd. (b)(1)) and that he had suffered a prior “strike” conviction for robbery. (§§ 211, 667, subds. (b)-(i); 1170.12, subds. (a)-(d).)
Defendant pled guilty as charged to inflicting corporal injury on a cohabitant and admitted having suffered a prior conviction for that same offense within the statutory period. (§ 273.5, subds. (a) and (e)(1).) The trial court accepted his guilty plea, granted the prosecution’s motion to dismiss the two remaining enhancement allegations, and found defendant was in violation of probation on a misdemeanor conviction.
Defendant was convicted of battery (§ 242) committed on October 4, 2005.
When the matter came on for sentencing, the trial court imposed the upper term (§ 273.5, subd. (e)(1)) after finding the circumstances in aggravation outweighed those in mitigation. The court also terminated defendant’s probation on the misdemeanor as unsuccessful and gave him credit for time served for that conviction.
DISCUSSION
Defendant contends imposition of the upper term of imprisonment violated his federal constitutional rights to a jury trial and due process under Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]. Respondent contends defendant waived his Blakely claim under the terms of his plea agreement and that Blakely was not violated because the trial court relied on circumstances in aggravation that were based on defendant’s numerous prior convictions and a fact he admitted to the probation officer.
Because the parties briefed this case prior to the decision in Cunningham v. California (2007) ___ U.S. ___ [166 L.Ed.2d 856] (Cunningham), respondent also contends that we must reject this claim under the authority of People v. Black (2005) 35 Cal.4th 1238.
We agree with respondent that the trial court properly imposed the upper term because it relied on circumstances in aggravation that are not implicated by Blakely.
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that “[o]ther 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.” (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) Under this rule, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
The punishment for inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) when the defendant has been convicted of the same offense within the past seven years, as defendant has, is a prison term of two, four, or five years. (§ 273.5, subd. (e)(1).) In selecting the term of imprisonment, the determinate sentencing law (DSL) requires the trial court to “order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (§ 1170, subd. (b).)
Here, the trial court imposed the upper term of five years after finding the circumstances in aggravation outweighed those in mitigation. The circumstances in aggravation relied on by the court are (1) defendant used a weapon, (2) he has a history of violence, (3) his prior convictions are numerous, (4) he served prior prison terms, (5) he was on probation at the time of the crime, and (6) his prior performance on probation is unsatisfactory. The court found two circumstances in mitigation, (1) the victim may have initiated the offense and (2) alcohol was a contributing factor to the offense.
Respondent contends defendant admitted this fact. We disagree. Although charged with the enhancement that he used a deadly weapon, to wit, a shovel, in the commission of the offense (§ 12022, subd. (b)(1)), defendant did not admit the truth of that allegation. The admission relied on by respondent appears in the probation report, which states that the defendant claimed the victim “approached him with a shovel in her hand. He grabbed the shovel and they struggled with it briefly. He claimed the victim must have inadvertently been struck in the teeth with the shovel.”
In People v. Black, supra, 35 Cal.4th at page1254, the California Supreme Court concluded that the DSL simply authorizes “a sentencing court to engage in the type of fact-finding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker.”
United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621].
However, the United States Supreme Court recently rejected the holding in Black. (Cunningham, supra, ___ U.S. ___ [166 L.Ed.2d 856].) In Cunningham, the high court concluded that it is the middle term specified in California’s DSL, not the upper term, that is the relevant statutory maximum. (Id. at p. 873.) Noting that an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance (see § 1170, subd. (b)), the court concluded that “[b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt . . . the DSL violates Apprendi’s bright-line rule.” (Id. at p. 873.)
Nevertheless, imposition of the upper term in this case does not implicate the line of cases beginning with Apprendi because the trial court substantially relied on defendant’s prior convictions to impose the upper term and as stated, the fact of a prior conviction is exempt from the rule in Apprendi. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) Indeed, as the court found in Almendarez-Torres, supra, 523 U.S. at p. 243 [140 L.Ed.2d at p. 368] and recognized in Apprendi, supra, 530 U.S. 466, 488 [147 L.Ed.2d 435, 453], the factor of recidivism does not relate to the commission of the offense and is a traditional basis for sentencing.
Here, three of the circumstances relied on by the trial court are based upon defendant’s recidivism, namely his history of violence, numerous prior convictions, and prior prison terms. The record shows that, excluding the present offense, defendant has suffered 11 prior convictions beginning in 1983 and continuing through to 2005 (§ 273.5, subd. (a)), served two separate prison terms, and does not dispute the truth of any of these convictions or the prison terms.
Moreover, nothing in Apprendi or Blakely limits a trial court’s authority to reach conclusions and draw reasonable inferences from a defendant’s record of prior convictions when such conclusions and inferences are the only reasonable ones to be made or drawn. Therefore, based upon the undisputed record of defendant’s prior convictions, the trial court could properly conclude that defendant’s 11 prior convictions are numerous and that he has a history of violence. As to the later conclusion, several of defendant’s convictions are for offenses that by definition involve violent or assaultive behavior including battery (§ 242), robbery (§ 211), which is classified as a “violent felony” (§ 667.5, subd. (c)(9)), and inflicting corporal injury on a cohabitant. (§ 273.5, subd. (a).)
Furthermore, Apprendi and Blakely proscribe only judicial factfinding that results in increased punishment beyond the statutory maximum. (Apprendi, supra, 530 U.S. at p. 489 [147 L.Ed.2d at p. 454].) The trial court retains its authority “to exercise broad discretion . . . within a statutory range” and to determine what facts are relevant to an increased sentence. (United States v. Booker, supra, 543 U.S. at p. 233 [160 L.Ed.2d at p. 643].) Thus, under California law, the trial court retains its discretion to weigh the circumstances in aggravation and mitigation. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; People v. Whitten (1994) 22 Cal.App.4th 1761, 1766.)
That weighing process “involves a flexible quantitative and qualitative analysis, not a rigid numerical approach.” (People v. Thornton (1985) 167 Cal.App.3d 72, 77.) A single aggravating factor is sufficient to impose an aggravated sentence where the aggravating factor outweighs the cumulative effect of all mitigating factors when viewed in light of the general sentencing objectives stated in rule 4.410 of the California Rules of Court. (People v. Nevill (1985) 167 Cal.App.3d 198, 202; People v. Cruz (1995) 38 Cal.App.4th 427, 433.) Those objectives include protecting society, punishing the defendant, preventing the defendant from committing new crimes, deterring others from criminal conduct, and achieving uniformity in sentencing.
In light of those objectives and the nature and extent of defendant’s prior criminal history, we are satisfied beyond a reasonable doubt that the trial court would have imposed the upper term based on the three valid circumstances relating to his prior convictions. Any error in considering the other three circumstances was harmless.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , J. BUTZ , J.
A fact admitted by the defendant in open court is not subject to the rule in Apprendi and Blakely. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413; see Almendarez-Torres v. United States (1998) 523 U.S. 224, 227, 248 [140 L.Ed.2d 350, 357, 371] (defendant admitted the truth of his prior convictions in open court) (Almendarez-Torres).) Aside from the question whether an admission to a probation officer suffices for purposes of Blakely, here the fact defendant used a shovel in the commission of the offense remains in dispute. Defendant’s statement only admits that a shovel was present during the altercation and that the victim was struck with it. Under his view, the victim could have come in contact with the shovel by her own hand as she struggled with defendant. Moreover, because no factual basis was placed on the record, the plea itself does not permit a reasonable inference that defendant used a shovel during the attack.