P. v. Uhler

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Filed 5/10/07 P. v. Uhler 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
FRANK JASON UHLER,
Defendant and Appellant.
C053367
(Super. Ct. No.
03F08089)
Citing Cunningham v. California (2007) 549 U.S. ___ [166
L.Ed.2d 856] (Cunningham), defendant Frank Jason Uhler contends
that the trial court violated his right to a jury trial by
imposing the upper term on his conviction for assault on a
police officer with a semi-automatic firearm. (Pen. Code, §
245, subd. (d)(2)). We disagree and affirm the judgment.
F ACTS AND P ROCEEDINGS
While the facts underlying defendant’s conviction are not
relevant to this appeal, we note that this is the second time
defendant’s case has been before us. When defendant previously

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appealed his conviction, we found sentencing error and remanded
the matter to the trial court. (People v. Uhler (Feb. 28, 2006,
C048915 [nonpub. opn.].) The claims in this appeal stem from
the resentencing hearing.
At that proceeding, the trial court acknowledged our
decision that defendant’s prior Nevada conviction did not
constitute a strike under California law. In resentencing
defendant, the trial court imposed the upper term of nine years
for count 4, assault on a peace officer with a semi-automatic
weapon. (Pen. Code, § 245., subd. (d)(2).) Because this
particular sentence is the sole basis for defendant’s appeal, we
outline the court’s reasoning in detail.
The trial court first reviewed defendant’s extensive
criminal history:
“In this matter, not only did we have an extremely serious
charge that came before the trial Court, in review of
[defendant’s] record, unfortunately, it showed a long prior
record starting in ‘92 with a vehicle theft, ‘93 with an 11378
felony. He did have the robbery conviction out of Nevada,
which, although is not going to go down as a strike in
California law, it still was an attempted robbery for which he
received a suspended prison sentence.
“He had a DUI after that, and we have the 246 incident
where he picked up the other matter, which is a California
strike. He picked up the 10851, a high speed chase, and got
four years, four months of prison. After that in ‘97, he had a

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possession for sale of marijuana, and I guess that was a
consecutive sentence to the 246.
“As the Court commented at the time of the sentencing, this
whole thing was quite unfortunate, in that [defendant] had
people that cared about him that urged him to go back into
custody on the parole violation, which would have been probably
a year’s length. Instead, we have this incident, which luckily,
there was no great bodily injury but certainly was not as
dangerous as it could be. As I recall, they unloaded the whole
gun at the officer, about ten shots.”
The court continued: “So the Court, although it started
with the middle term last time, I did make the comment that
because it was a life case, I didn’t want to get into any
Blakely issues [Blakely v. Washington (2004) 542 U.S. 296 [159
L.Ed.2d 403, hereafter Blakely], but a review of his record and
consideration of the prior that is not a strike but is certainly
a serious felony in his background causes the Court to have to
indicate this is an upper-term case.
“He was on parole. He has a robbery charge for which the
Court is not going to be adding any additional time. He was in
violation using drugs, carrying weapons; and rather than submit
to a parole violation or submit to a vehicle stop, he got in an
extremely dangerous high-speed chase and threatened great bodily
harm on the peace officer who was just engaged in the
performance of his duties.
“So I will find that this is an aggravated case, and the
upper term of nine years will be imposed. That is doubled

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because of the California strike that remains, for a total of 18
years. That is Count Four.”
The court then imposed sentences for the additional charges
on which defendant had been convicted, with a resulting
aggregate prison term of 47 years.
D ISCUSSION
Defendant contends that the imposition of the upper term
violated his right to jury trial on the aggravating factors used
to enhance his sentence. We do not agree.
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. (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 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, supra,
542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
In 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

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right to trial by jury safeguarded by the Sixth and Fourteenth
Amendments.” (549 U.S. 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].)
Here, however, the trial court based its decision to impose
the upper term solely on defendant’s lengthy criminal history,
including prior offenses and parole violations. The imposition
of the upper term based on these facts did not violate the rule
of Apprendi, Blakely and Cunningham because the rule does not
apply to an aggravated sentence based on a defendant’s prior
convictions and recidivism. (Apprendi, supra, 530 U.S. at p.
490 [147 L.Ed.2d at p. 455]; accord, United States v. Booker
(2005) 543 U.S. 220, 231 [160 L.Ed.2d 621, 641-642]; see also
People v. Thomas (2001) 91 Cal.App.4th 212, 223.)
D ISPOSITION
The judgment is affirmed.
HULL , J.
We concur:
BLEASE , Acting P.J.
RAYE , J.

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