P. v. Steele

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Filed 5/2/07 P. v. Steele 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
JUSTIN ALEXANDER STEELE,
Defendant and Appellant.
C052743
(Super. Ct. No.
04F10823)
A jury convicted defendant Justin Alexander Steele of making
a criminal threat and assault with a deadly weapon, and the trial
court sentenced him to the upper term on each count (an aggregate
term of four years in state prison). On appeal, defendant contends
that imposition of the upper term violates the Sixth Amendment to
the United States Constitution as interpreted in Apprendi v. New
Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi),
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]
(hereafter Blakely), and Cunningham v. California (2007) 549 U.S.

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___ [166 L.Ed.2d 856] (hereafter Cunningham). We shall affirm the
judgment.
DISCUSSION
Apprendi held that other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the statutory
maximum must be tried to a jury and proved beyond a reasonable doubt.
(Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For
this purpose, the statutory maximum is the maximum sentence a court
could impose based solely on facts reflected by a jury’s verdict or
admitted by the defendant; thus, when a 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, supra, 542 U.S. at pp. 303-305
[159 L.Ed.2d at pp. 413-414].)
In Cunningham, the United States 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, supra, 549 U.S. ___ [166
L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th
1238 on this point.)
Citing the aforementioned authorities, defendant contends
that the trial court’s imposition of the upper term violated his
constitutional right to a jury trial. We disagree.
The court imposed the upper term based upon the fact that
defendant was “on CYA [California Youth Authority] parole” at the

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time he committed the present offenses. Juvenile adjudications are
prior convictions within the meaning of Apprendi (People v. Palmer
(2006) 142 Cal.App.4th 724, 732; United States v. Burge (11th Cir.
2005) 407 F.3d 1183, 1190; United States v. Jones (3d Cir. 2003)
332 F.3d 688, 695-696; United States v. Smalley (8th Cir. 2002) 294
F.3d 1030, 1032-1033); and 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.)
For example, “‘the fact of a prior conviction,’ and related
facts such as the timing of the conviction and the type and length
of sentence imposed, may be judicially found at sentencing.” (U.S.
v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.)
Thus, the trial court may determine and rely on the defendant’s
probation or parole status to impose the upper term. (Cf. United
States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142 (district
court did not violate defendant’s Sixth Amendment jury rights
by finding the offense was committed while the defendant was on
probation); United States 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].)
Accordingly, defendant’s status in parole after incarceration
for a criminal offense committed as a juvenile falls within the
prior conviction exception because it is premised on defendant’s
prior criminal adjudication, does not relate to commission of the

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current offense, and is verifiable by review of court records.
(See People v. Thomas, supra, 91 Cal.App.4th 212, 216-223.)
Hence, defendant’s claim of constitutional error fails.
DISPOSITION
The judgment is affirmed.
SCOTLAND , P.J.
We concur:
RAYE , J.
ROBIE , J.

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