Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA090398, Cynthia Rayvis, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Kenneth Moore appeals from the judgment entered following a jury trial that resulted in his conviction for grand theft of personal property. Moore was sentenced to a prison term of 10 years.
Moore’s sole contention on appeal is that the trial court violated his Sixth Amendment and due process rights to have a jury determine the facts upon which the court relied to impose an upper term sentence (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856]). We affirm.
In their opposition brief, the People assert that the trial court erred by staying, rather than striking, two Penal Code section 667.5, subdivision (b) prior prison term enhancements. In our original unpublished opinion in this matter (People v. Moore (June 29, 2007, B190538), we ordered the matter remanded for resentencing so that the section 667.5, subdivision (b) allegations could either be stricken or imposed. After our opinion was filed, Moore filed a petition for rehearing and moved to augment the record, providing documentation showing that on December 11, 2006, the trial court corrected its error and struck the two section 667.5, subdivision (b) enhancements. Given that the trial court already struck the two enhancements, the People’s contention is moot.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On July 28, 2005, Moore and a woman visited the electronics department of a Lakewood Target store. The woman placed two portable DVD players, valued at approximately $299 each, in their shopping cart. The couple pushed the cart to the accessories department. Moore removed the DVD players from their boxes and placed them inside two large J.C. Penney bags. The couple left the store without paying for the DVD players.
2. Procedure.
Trial was by jury. Moore was convicted of grand theft of personal property (Pen. Code, § 487, subd. (a)). After Moore waived his right to a jury trial on prior conviction allegations, the trial court found Moore had suffered nine prior convictions, and had served nine prior prison terms within the meaning of section 667.5, subdivision (b). Moore was sentenced to a term of 10 years in prison. The trial court further imposed a restitution fine, a suspended parole revocation fine, and a court security fee. Moore appeals.
All further undesignated statutory references are to the Penal Code.
Ten section 667.5, subdivision (b) allegations were alleged in the information. The trial court struck one section 667.5, subdivision (b) allegation after the parties agreed it “should not have been alleged.”
DISCUSSION
1. Imposition of the upper term.
a. Additional facts.
At sentencing, the trial court imposed the upper term of three years. It explained, “[The] court selects the high term for the following reasons: the manner in which the crime was carried out indicates quite a bit of planning. The defendant’s prior convictions as an adult are numerous. The defendant has served several prior prison terms. And he was on probation or parole at the time this crime was committed.”
b. Discussion.
Moore contends that imposition of the upper term based on facts that were neither admitted nor found true by the jury violated his right to a jury trial as articulated in Blakely v. Washington, supra, 542 U.S. 296 and Cunningham v. California, supra, 127 S.Ct. 856. This contention lacks merit.
Initially, we reject the People’s contention that Moore waived his claim by failing to object on constitutional grounds at sentencing. The issue was recently decided adversely to the People in People v. Black (2007) 41 Cal.4th 799, 810-812 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, 837. Moore was sentenced on April 3, 2006, after the United States Supreme Court’s decision in Blakely and the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), but before the decision in Cunningham. Under these circumstances, appellant’s claim is not forfeited. (People v. Sandoval, supra, at p. 837, fn. 4.) “An objection in the trial court is not required if it would have been futile. [Citation.]” (Ibid.) At the time of sentencing, Black I “was binding on the lower courts until it was overruled by the high court. [Citation.] Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow . . . Black I and deny the request.” (Ibid.) Accordingly, Moore’s claim is not forfeited.
Moore’s claim fails on the merits, however. In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court 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 tried to a jury and proved beyond a reasonable doubt. In Cunningham, the Court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 871; Black II, supra, 41 Cal.4th at pp. 805, 808-809; People v. Sandoval, supra, 41 Cal.4th at pp. 831-832.)
Imposition of an upper term sentence “does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Under California law, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (Id. at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, at p. 812.) In other words, “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.)
Here, the trial court relied upon at least one constitutionally permissible factor, i.e., Moore’s recidivism. The trial court cited as a circumstance in aggravation that Moore’s prior convictions were numerous. Imposition of an upper term sentence is permissible when based upon the aggravating circumstance of the defendant’s criminal history. (See Black II, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th at pp. 836-837 [“the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction”].) This recidivism exception applies not only to the fact of the prior conviction, but also to “other related issues that may be determined by examining the records of the prior convictions,” including the question of whether the defendant’s convictions are numerous or increasingly serious. (Black II, supra, at pp. 819-820.) Here, Moore had suffered nine prior convictions. (See id. at p. 818 [three prior convictions are numerous]; Cal. Rules of Court, rule 4.421(b)(2) [specifying as an aggravating circumstance that defendant’s prior convictions are numerous].) Because Moore’s criminal history established an aggravating circumstance that independently satisfied Sixth Amendment requirements and rendered him eligible for the upper term, he was not legally entitled to the middle term and his right to a jury trial was not violated. (Black II, supra, at p. 820.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.