P. v. Lee

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Filed 4/18/07 P. v. Lee 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CALVIN EARL LEE,
Defendant and Appellant.
C052852
(Super. Ct. No.
CM022501)
Defendant Calvin Earl Lee pled guilty to possession of
methamphetamine, admitted he had served three prior prison
terms, and was placed on probation pursuant to Proposition 36.
Over the course of the next several months, he admitted four
separate probation violations. Consequently, the trial court
revoked defendant’s probation and sentenced him to the upper
term of six years in state prison, due to defendant’s prior
felony convictions and related factors.

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On appeal, defendant contends (1) the 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. ___ [166
L.Ed.2d 856] (hereafter Cunningham), and (2) the trial court
impermissibly used the fact that defendant had served prior
prison terms to both enhance and aggravate his sentence. We
shall affirm the judgment.
DISCUSSION
I
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].)
Accordingly, in Cunningham, supra, 549 U.S. at p. ___ [166
L.Ed.2d at p. 864], 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’

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sentence,” California’s determinate sentencing law “violates a
defendant’s right to trial by jury safeguarded by the Sixth and
Fourteenth Amendments.” (Ibid., overruling People v. Black (2005)
35 Cal.4th 1238 on this point, vacated in Black v. California
(2007) __ U.S. __ [167 L.Ed.2d 36].)
Here, in imposing the upper term, the trial court cited the
following aggravating factors: defendant’s three prior felony
convictions; his three prior prison terms; his status on parole
at the time he committed the present offense; and his prior parole
violations. As we will explain, the court’s consideration of these
aggravating factors that were not submitted to a jury did not run
afoul of the Sixth Amendment to the United States Constitution.
As pointed out in Apprendi, Blakely, and Cunningham, the Sixth
Amendment jury-trial guarantee does not apply to prior convictions
that are used to impose greater punishment. (E.g., Cunningham,
supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
The reasons for the exemption of prior convictions from
the scope of the jury trial requirement for increased sentences
are (1) the fact 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 [147 L.Ed.2d
at p. 458]), 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 [147
L.Ed.2d at p. 454, fn. omitted.) It follows that the prior

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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. United States v. Fagans (2d Cir.
2005) 406 F.3d 138, 141-42; 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”].)
Thus, it was proper for the trial court to impose the upper
term not only because of defendant’s prior convictions, but also
because he had served prior prison terms and was on parole when
he committed the present offense--all of which were aggravating
factors that did not have to be submitted to a jury.
In any event, we conclude beyond a reasonable doubt that
the court would have imposed the upper term based solely on the
aggravating fact of defendant having had three prior convictions.
(People v. Osband (1996) 13 Cal.4th 622, 728 [one valid factor
is sufficient to support the upper term].)

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II
Defendant also complains that the trial court used the same
fact--defendant had served prior prison terms--to both enhance his
sentence under Penal Code section 667.5 and impose the upper term.
Generally, a court is prohibited from using a fact to both
impose an aggravated term and enhance that sentence. (Pen. Code,
§ 1170, subd. (b).) However, when a court imposes an enhancement
for a prior prison term (Pen. Code, § 667.5), it is not a dual use
of facts for a court to use the fact of a prior conviction to impose
the upper term, even where that conviction underlies prior prison
term enhancement; this is so “because [the conviction] is not the
fact on which enhancement is based.” (People v. Hurley (1983) 144
Cal.App.3d 706, 709.) “In contrast, a trial court may not impose
a section 667.5 [prior prison term] enhancement and consider in
aggravation that ‘[t]he defendant has served prior prison terms
whether or not charged or chargeable as an enhancement under section
667.5.’ [Citation.]” (Id. at p. 710, original italics.)
Here, defendant did not object when the trial court used
defendant’s prior prison terms to both aggravate and enhance his
sentence. Thus, he has forfeited the claim of error. (People v.
Scott (1994) 9 Cal.4th 331, 348; People v. Steele (2000) 83
Cal.App.4th 212, 226.) Moreover, an objection would have been
futile (People v. Price (1991) 1 Cal.4th 324, 387) because the
court stated other valid reasons to impose the upper term,
including defendant’s prior convictions. Given the absence of
any mitigating factors and the fact that only a single aggravating
factor is required to impose the upper term (People v. Osband,

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supra, 13 Cal.4th at p. 728), there is no reasonable probability
that defendant would have received a more favorable sentence absent
the court’s dual use of facts. (People v. Coleman (1989) 48 Cal.3d
112, 166 [improper dual use of the same fact for imposition of both
an upper term and an enhancement does not necessitate resentencing
if it is not reasonably probable that a more favorable sentence
would have been imposed in the absence of the error].)
DISPOSITION
The judgment is affirmed.
SCOTLAND , P.J.
We concur:
SIMS , J.
CANTIL-SAKAUYE , J.

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