P. v. Moran

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Filed 4/12/07 P. v. Moran CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
REYNALDO L. MORAN,
Defendant and Appellant.
E040845
(Super.Ct.No. FVI023193)
OPINION
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,
Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-
Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy
Attorney General, for Plaintiff and Respondent.

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Defendant and appellant Reynaldo Moran pled guilty to inflicting corporal injury
on a spouse/cohabitant (Pen. Code, § 273.5, subd. (a))1 and was placed on three years’
probation. The trial court later found that he violated a term of his probation prohibiting
him from possessing or consuming alcoholic beverages. The court revoked defendant’s
probation and sentenced him to the upper term of four years in state prison. Defendant’s
sole contention on appeal is that the sentence violates his Sixth Amendment right to trial
by jury under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We disagree and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 19, 2005, defendant was charged with corporal injury to a
spouse/cohabitant (§ 273.5, subd. (a), count 1), resisting an officer (§ 69, count 2), being
cruel to a child by endangering his/her health (§ 273a, subd. (b), count 3), and vandalism
(§ 594, subd. (b)(2)(A), count 4). Pursuant to a plea agreement, defendant pled guilty to
count 1 and the other counts were dismissed. The court placed defendant on probation
for a period of three years, under certain terms, including that he not violate any law and
not possess or consume any alcoholic beverages.
On May 23, 2006, defendant’s probation officer filed a petition to revoke his
probation. The petition alleged that defendant violated his probation terms by being
arrested on April 26, 2006, for being drunk in public. In addition, defendant was arrested
1 All further statutory references will be to the Penal Code unless otherwise noted.

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on May 19, 2006, for battery on a spouse (§ 243, subd. (e)(1)), after his wife reported that
he continued to abuse her while he was drunk.
A probation revocation hearing was held on June 30, 2006. After hearing
testimony from the probation officer, the arresting officer, and defendant, the trial court
determined that defendant violated the probation term prohibiting him from possessing or
consuming alcohol. The court then proceeded to sentence defendant. The court relied on
the following aggravating factors, as listed in the probation officer’s report dated
February 3, 2006: The crime involved great violence and the threat of great bodily harm,
defendant took advantage of a position of trust, defendant was on probation at the time of
this offense, and defendant’s prior performance on probation was unsatisfactory. The
court found no factors in mitigation. Furthermore, the court specifically noted
defendant’s prior criminal record, including that he had stolen property, committed
battery causing serious injury, and violated a court order to prevent domestic violence.
The court remarked that defendant’s prior record was significant, since his previous
misdemeanor convictions led up to the current felony conviction, and since his current
offense also involved domestic violence. Based on these considerations, the court
sentenced defendant to the upper term of four years in state prison.
ANALYSIS
The Trial Court Properly Imposed the Upper Term
Defendant contends that his Sixth Amendment right to a jury trial, as defined in
Blakely, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi), was violated when the trial court imposed the upper term sentence. We

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disagree.
In Blakely, the U.S. Supreme Court affirmed 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.’”
(Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) The
Apprendi exception for prior convictions has been broadly interpreted by California
courts. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-223 (Thomas).)
The California Supreme Court later determined that “the judicial factfinding that
occurs when a judge exercises discretion to impose an upper term . . . under California
law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (People v.
Black (2005) 35 Cal.4th 1238, 1244 (Black).) The Black decision was controlling
authority at the time of the sentencing hearing in the instant case. (See Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) After the briefing was completed in
the current case, however, the United States Supreme Court ruled that facts used to
impose an upper term sentence under California’s determinate sentencing law are subject
to the above stated rule set out in Blakely/Apprendi. This holding effectively overruled
Black on this point. (Cunningham v. California (2007) ___ U.S. __ [127 S.Ct. 856, 166
L.Ed.2d 856] (Cunningham).)2 In any event, we conclude that the present sentence may
be affirmed, based on recidivist aggravating factors.
2 Because Cunningham, supra, 127 S.Ct. 856, was decided after briefing was
complete in the instant case, we permitted the parties to file supplemental briefs. We
note that neither party did so.

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The court here cited as aggravating factors the circumstance that defendant was on
probation when he committed the present offense and his unsatisfactory performance on
probation—factors which presuppose one or more prior convictions. The court also
referred to defendant’s prior convictions and noted the increasing seriousness of his
crimes, specifically that his previous misdemeanor convictions led up to the current
felony conviction. Because the facts that defendant was on probation at the time of the
current offense, his prior performance on probation was unsatisfactory, and his
convictions were increasing in seriousness arise out of the fact of a prior conviction, and
so are closely related to the prior convictions themselves, they come within the prior
conviction exceptions contained in Blakely and Apprendi. Also, as with a prior
conviction, these facts can be established by a review of the court records relating to the
prior offenses. (See People v. Thomas, supra, 91 Cal.App.4th at p. 223.) Therefore, the
upper term was supported by factors that need not be found by a jury beyond a reasonable
doubt. (See Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.) It
follows that reliance on those factors was not error under Cunningham, supra, 127 S.Ct.
856.)
Furthermore, a single factor in aggravation suffices to support imposition of the
upper term. (People v. Osband (1996) 13 Cal.4th 622, 730.) The facts pertaining to
defendant’s prior convictions alone were sufficient to support the trial court’s selection of
the upper term. Thus, the court’s reliance on other non-prior-conviction-related facts was
harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18.

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We conclude that imposition of the upper term in this case did not violate
defendant’s federal constitutional right to a jury trial under the Sixth Amendment or his
right to due process under the Fourteenth Amendment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
KING
J.

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