P. v. Anderson

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Filed 6/27/07 P. v. Anderson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL THOMAS ANDERSON,
Defendant and Appellant.
C052270
(Super. Ct. No.
CRF05708)
ORDER MODIFYING
OPINION AND DENYING
REHEARING
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 5, 2007, be
modified as follows:
On page 10, the following part III is inserted immediately after
the last paragraph of part II:
III. The Upper Term Sentence
Defendant contends that the imposition of the
upper term violated his right to a jury trial on the
aggravating factors used to enhance his sentence. We
do not agree and find any error harmless.

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In Apprendi v. New Jersey (2000) 530 U.S. 466
[147 L.Ed.2d 435] (Apprendi), the 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. (Id. at
p. 490.) For this purpose, the statutory maximum is
the maximum sentence that a court could impose based
solely on facts reflected by a jury's verdict or
admitted by the defendant. Thus, when a sentencing
court’s authority to impose an enhanced sentence
depends upon additional fact findings, there is a
right to a jury trial and proof beyond a reasonable
doubt on the additional facts. (Blakely v. Washington
(2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403]
(Blakely).)
In Cunningham v. California (2007) 549 U.S. ___
[166 L.Ed.2d 856] (Cunningham), the Supreme Court held
that by “assign[ing] to the trial judge, not to the
jury, authority to find the facts that expose a
defendant to an elevated ‘upper term’ sentence,”
California’s determinate sentencing law “violates a
defendant’s right to trial by jury safeguarded by the
Sixth and Fourteenth Amendments.” (Cunningham, at
p. ___ [166 L.Ed.2d at p. 864], overruling People v.
Black (2005) 35 Cal.4th 1238 on this point, vacated in
Black v. California (Feb. 20, 2007) ___ U.S. ___
[167 L.Ed.2d 36].)
The trial court based its decision to impose the
upper term on four factors -- defendant’s “numerous
prior convictions,” prior prison terms, unsatisfactory
performance on parole and probation, and that he was
on probation at the time of his crime. As pointed out
in Apprendi, Blakely, and Cunningham, the Sixth
Amendment jury-trial guarantee does not apply to the
use of prior convictions to impose greater punishment.
(E.g., Cunningham, supra, 549 U.S. at p. ___
[166 L.Ed.2d at p. 864].) Defendant contends we
should read this exception narrowly, limiting it to
the bare fact of a prior criminal conviction. We
disagree.
The reasons for the exemption of prior
convictions from the scope of the jury trial
requirement for increased sentences are (1) the fact

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of a prior conviction “‘does not relate to the
commission of the offense’” for which the defendant is
being sentenced (Apprendi, supra, 530 U.S. at p. 496),
and (2) “the certainty that procedural safeguards
attached to any ‘fact’ of prior conviction . . .
mitigate[s] the due process and Sixth Amendment
concerns otherwise implicated in allowing a judge to
determine a ‘fact’ increasing punishment beyond the
maximum of the statutory range.” (Id. at p. 488, fn.
omitted.) It follows that the prior conviction
exception applies not only to the fact of a prior
conviction, but also to “an issue of recidivism which
enhances a sentence and is unrelated to an element of
a crime.” (People v. Thomas (2001) 91 Cal.App.4th
212, 223.) Therefore, “‘the fact of a prior
conviction,’ and related facts . . . may be judicially
found at sentencing.” (U.S. v. Cordero (5th Cir.
2006) 465 F.3d 626, 632-633, fns. omitted.) For
example, the trial court may determine and rely on the
defendant’s probation or parole status to impose the
upper term. (Cf. U.S. v. Fagans (2d Cir. 2005)
406 F.3d 138, 141-42; U.S. v. Corchado (10th Cir.
2005) 427 F.3d 815, 820 [“the ‘prior conviction’
exception extends to ‘subsidiary findings’ such as
whether a defendant was under court supervision when
he or she committed a subsequent crime”].)
Defendant’s prior prison terms and his being on
probation at the time of the offenses are clearly
recidivism issues unrelated to the facts of the crime
and thus do not run afoul of Apprendi, Blakely, and
Cunningham. Defendant’s poor performance on probation
and parole is less clearly related to this exception,
as it may involve facts unrelated to recidivism. To
the extent that reliance on this factor was error, it
was harmless.
The trial court relied on three valid factors
when imposing the upper terms: defendant’s prior
convictions, his prior prison term, and being on
probation at the time of his crime. We are satisfied
beyond a reasonable doubt that the trial court would
have imposed the upper term based on these factors
alone. Therefore, any error in considering
defendant’s poor performance on probation and parole
is harmless. (See Washington v. Recuenco (2006)
548 U.S. ___, ___ [165 L.Ed.2d 466, 473, 476-477].)

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There is no change in the judgment.
Plaintiff’s petition for rehearing is denied.
BY THE COURT:
BLEASE , Acting P.J.
RAYE , J.
CANTIL-SAKAUYE , J.

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