P. v. Brooks

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Filed 6/11/07 P. v. Brooks 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
SAMUEL CLAUDE BROOKS,
Defendant and Appellant.
E041690
(Super.Ct.No. FSB034640)
OPINION
APPEAL from the Superior Court of San Bernardino County. Brian S.
McCarville, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado
Rucci and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

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Pursuant to a plea agreement, defendant pleaded guilty to possession of a firearm
by a felon in violation of Penal Code section 12021, subdivision (a)(1),1 and admitted the
gang enhancement allegation (§ 186.22, subd. (b)(1)). In return, defendant was placed on
formal probation for three years on various terms and conditions, including serving 388
days in county jail.
Subsequently, while on probation in this case, defendant was convicted of
commercial burglary (§ 459) in Orange County. As a result, his probation in this case
was revoked, and he was sentenced to a total term of seven years in state prison as
follows: the upper term of three years for the gun possession charge, plus the upper term
of four years for the gang enhancement allegation.
Defendant’s sole contention on appeal is that he was deprived of his federal and
state constitutional rights to a jury trial and due process under Cunningham v. California
(2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868] (Cunningham), Blakely v. Washington
(2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New
Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial
court imposed the upper term. Pursuant to the prior conviction exception articulated in
Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d
350], we reject this contention and affirm the judgment.
1 All future statutory references are to the Penal Code unless otherwise
stated.

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I
FACTUAL AND PROCEDURAL BACKGROUND2
On May 2, 2002, San Bernardino police officers executed a search warrant on
defendant’s residence. They found a gun on the floor of defendant’s bedroom closet.
Defendant was a convicted felon and a member of a criminal street gang.
On July 3, 2003, following a negotiated plea, defendant pleaded guilty to
possession of a firearm by a felon and admitted the gang enhancement allegation. In
return, defendant was placed on probation for three years.
Sometime in early 2004, defendant’s probation officer was advised that defendant
had been sentenced to four years in state prison following his conviction for commercial
burglary in Orange County. Defendant’s probation officer then reviewed a record of
defendant’s criminal history and determined that the Orange County burglary conviction
had occurred while defendant was on probation in the instant case.
A petition to revoke defendant’s probation in this case was filed. On September 8,
2006, defendant was found to be in violation of his probation and was sentenced to a total
term of seven years in state prison.
II
DISCUSSION
At sentencing, the trial court imposed the upper term on the felon in possession of
a firearm conviction and the gang enhancement allegation based on the following
aggravating factors: (1) that defendant had engaged in violent conduct, which indicates a
2 The factual background of defendant’s original crime is taken from the
probation report. The factual background of defendant’s probation violation is taken
from the probation revocation hearing.

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serious danger to society; (2) that defendant’s prior convictions as an adult were
numerous and of increasing seriousness; (3) that defendant had served prior prison terms;
and (4) that defendant’s prior performance on probation or parole was unsatisfactory.
Relying on Cunningham, Blakely, and Apprendi, defendant contends the upper
term sentence violates his Sixth Amendment rights because the sentence was based on
aggravating factors not reflected in the jury verdict or admitted by defendant.
The People argue that defendant forfeited the error by not objecting at the
sentencing hearing. We reject that argument. On June 20, 2005, over a year before
defendant’s sentencing hearing in this case, our state Supreme Court concluded that the
imposition of an upper term sentence, as provided under California law, was
constitutional and does not implicate a defendant’s Sixth Amendment right to a jury trial.
(People v. Black (2005) 35 Cal.4th 1238, 1244.) At that time, the trial court was
compelled to follow Black. Therefore, it would have been futile for defense counsel to
object at sentencing based on Blakely, Apprendi, or the United States Constitution.
Under these circumstances, defendant’s Blakely challenge was not forfeited. (People v.
Birks (1998) 19 Cal.4th 108, 116, fn. 6; People v. Turner (1990) 50 Cal.3d 668, 703-
704.)
In Cunningham, supra, 127 S .Ct. 856, 868, the United States Supreme Court
overruled Black and held that the middle term in California’s determinate sentencing law
was the relevant statutory maximum for the purpose of applying Blakely and Apprendi.
(Cunningham, at p. 868.) However, Cunningham reaffirmed the exception enunciated in
Almendarez-Torres v. United States, supra, 523 U.S. 224 and affirmed in Apprendi:
“[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that

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allows a judge to impose a sentence above the statutory maximum based on a fact, other
than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]”
(Cunningham, at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488,
490.)3 The court explained California’s determinate sentencing law violates Apprendi’s
bright-light rule: “Except for 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.’ [Citation.]” (Cunningham, at p. 868.)
Defendant’s assertion that the sentence violates Cunningham is without merit.
The rule of Cunningham does not apply to the use of prior convictions to increase the
penalty for a crime. (Cunningham, supra, 127 S.Ct. at p. 868; see also Apprendi, supra,
530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301.) The Almendarez-Torres/Apprendi
exception is sufficiently broad to encompass all matters ascertainable from the face of the
prior judgment of conviction. (People v. McGee (2006) 38 Cal.4th 682, 707-709; People
v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) As the record of sentencing would
show whether probation was granted and whether defendant was on probation or parole
when the current offense was committed or whether defendant’s performance on
probation or parole was unsatisfactory, we conclude that the exception extends to these
facts as well. Defendant’s sentencing report shows that he has an extensive criminal
history as well as a history of repeatedly violating probation and/or parole. It also shows
that he had served numerous prior prison terms. As the probation officer aptly explained,
“The defendant has six prior felony convictions and was granted probation after the first
3 In Cunningham, the defendant had no prior criminal history; the sentencing
judge imposed the upper term in reliance on such factors as the particular vulnerability of
the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)

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conviction[;] however, that probation was revoked and he was sentenced to prison. In
each of the remaining five felony convictions the defendant was also sentenced to prison.
The defendant violated his parole in every case. He was finally discharged, the second
time, from parole on March 25, 2002, a little over a month prior to committing this
offense [possession of a firearm by a felon].” Hence, imposition of the upper term based
on defendant’s criminal recidivism was proper.
It is settled that only a single aggravating factor is required to impose the upper
term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Earley (2004) 122
Cal.App.4th 542, 550.) Here, the trial court relied on defendant’s prior convictions, prior
prison terms, prior performance on probation and parole, and recidivism to impose the
upper term, as permitted by Cunningham and Blakely. Even if we were to assume error
under Cunningham based on the trial court’s reference to other aggravating factors, the
error was harmless beyond a reasonable doubt (see Chapman v. California (1967) 386
U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705, 711]). (Washington v. Recuenco (2006)
___U.S.___, ___ [126 S.Ct. 2546, 2553] [“[f]ailure to submit a sentencing factor to the
jury . . . is not structural error” and is subject to harmless error rule]; People v.
Sengpadychith (2001) 26 Cal.4th 316, 327.)
The United States Constitution does not mandate a jury trial on prior convictions,
and any right to a jury trial would be purely statutory. (Apprendi, supra, 530 U.S. at pp.
487-490; People v. Epps (2001) 25 Cal.4th 19, 23; see § 1025.) By statute in California,
a defendant is afforded a jury trial only as to the fact of those prior convictions alleged in
the accusatory pleading as statutory sentence enhancements. (§ 1025; Epps, at pp. 29-
30.) Prior convictions considered as aggravating factors for the purpose of imposing the

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upper term may be determined by the court upon facts shown in the probation report, as
the trial court did here, and need be established only by a preponderance of the evidence.
(§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) Thus, as defendant was not
entitled to a jury trial, Blakely and Apprendi have no application here. (See Epps, at p.
23; § 1025; see also Cunningham, supra, 127 S.Ct. at pp. 860, 868; Apprendi, at pp. 488,
490.)
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
McKINSTER
J.

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