P. v. Crouch

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Filed 2/21/07 P. v. Crouch CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIK JAMES RICHARD CROUCH,
Defendant and Appellant.
A113345
(Marin County
Super. Ct. No. SC130399A)
INTRODUCTION
Erik James Richard Crouch appeals from the judgment of the Marin County
Superior Court revoking his probation and imposing an aggravated prison sentence upon
finding that he had violated the terms of his probation for corporal injury on a spouse.
(Pen. Code, § 273.5, subd. (a).) We affirm.
PROCEDURAL BACKGROUND1
On August 8, 2003, appellant pleaded guilty to one count of corporal injury on a
spouse/cohabitant (Pen. Code, § 273.5, subd. (a).) The court placed appellant on
probation for five years on the condition that he serve one year in county jail.
On October 26, 2005, a petition to revoke probation was filed, alleging that
appellant had assaulted the same victim on August 14, 2005. On March 3, 2006, over
appellant’s objection under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the

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court refused to reinstate probation and sentenced appellant to the aggravated term of
four years in state prison, citing his substantial criminal history as the primary reason for
the sentence.
DISCUSSION
Appellant contends that imposition of the upper term violates his federal
constitutional rights to due process and a jury trial as recognized in Blakely, supra,
542 U.S. 296.) He argues the trial court violated Blakely and committed constitutional
error by imposing the upper term based on an aggravating factor that was not supported
by jury findings or admitted by him.
A. The law
The controlling principle was announced by the United States Supreme Court in
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which states: “Other 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.” (Id. at p. 490.)
In Blakely, supra, 542 U.S. 296, the Supreme Court held that a Washington State
court violated the Apprendi rule and denied a criminal defendant his constitutional right
to a jury trial by increasing that defendant’s sentence for second-degree kidnapping from
the “standard range” of 49 to 53 months to 90 months based on the trial court’s finding
that the defendant acted with “ ‘deliberate cruelty.’ ” (Blakely, supra, 542 U.S. at
pp. 303-304.) In reaching this conclusion, the court clarified that, for Apprendi purposes,
the “ ‘statutory maximum’ is not the maximum sentence a judge may impose after
finding additional facts, but the maximum he may impose without any additional
findings.” (Ibid.)
Blakely raised concerns about the constitutionality of California’s Determinate
Sentencing Law (DSL). Under our DSL, the maximum sentence a judge may impose for
1 It is unnecessary to relate the facts underlying the original conviction and the
probation revocation, in order to address appellant’s claim on appeal. Both involved

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a conviction without making any additional findings is the middle term. Penal Code
section 1170, subdivision (b), states that “the court shall order imposition of the middle
term, unless there are circumstances in aggravation or mitigation of the crime.”
Furthermore, California Rules of Court, rule 4.420(b), states that “[s]election of the upper
term is justified only if, after a consideration of all the relevant facts, the circumstances in
aggravation outweigh the circumstances in mitigation.” If, pursuant to Blakely, the
statutory maximum sentence under California’s DSL is the middle term, then an upper
term sentence based on aggravating circumstances, other than the fact of a prior
conviction, that are found by the trial court rather than by a jury would violate the
Apprendi rule.
The California Supreme Court attempted to resolve the constitutional issue in
People v. Black (2005) 35 Cal.4th 1238 (Black). The Black court held that “the judicial
factfinding that occurs when a judge exercises discretion to impose an upper term
sentence or consecutive terms under California law does not implicate a defendant’s
Sixth Amendment right to a jury trial.” (Id. at p. 1244.) The court reasoned that, under
California’s sentencing system, “the upper term is the ‘statutory maximum’ and a trial
court’s imposition of an upper term sentence does not violate a defendant’s right to a jury
trial under the principles set forth in Apprendi, Blakely, and [United States v.] Booker
[(2005) 543 U.S 220 (Booker)].” (Black, at p. 1254.)
However, the United States Supreme Court recently found that California’s DSL
does violate the constitutional principle embodied in the Apprendi rule. (Cunningham v.
California (2007) __U.S.__ [127 S.Ct. 856, 2007 U.S. LEXIS 1324] (Cunningham).)
Cunningham held that the DSL, “by placing sentence-elevating factfinding within the
judge’s province, violates a defendant’s right to trial by jury safeguarded by the Sixth and
Fourteenth Amendments.” (2007 U.S. LEXIS 1324 at p. 11.) The court reasoned that,
under the DSL, the middle term—not the upper term—is the relevant statutory maximum
because (1) an upper term sentence can be imposed only if the judge finds aggravating
domestic violence against the same victim.

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circumstances, and (2) aggravating circumstances “depend on facts found discretely and
solely by the judge.” (Id. at p. 35.) Furthermore, the court found, “[b]ecause
circumstances in aggravation are found by the judge, not the jury, and need only be
established by a preponderance of the evidence, not beyond a reasonable doubt, . . . the
DSL violates Apprendi’s bright-line 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.]” (Id. at pp. 35-
36.)2
B. Application
In the present case, appellant’s counsel argued that mitigating and aggravating
factors were balanced and also objected to the upper term based on Blakely. Immediately
thereafter, the court revoked appellant’s probation and sentenced him to the aggravated
term, stating: “[A]ll of the factors in aggravation and mitigation considered, the Court
finds that the upper term is the appropriate term particularly in view of your substantial
history preceding the charge for which you have been convicted in this case of violent
offenses. That’s the biggest factor and most important factor.” Clearly the court was
referring to appellant’s history of prior convictions.
Although stating generally that it had considered the aggravating and mitigating
factors, the court relied upon appellant’s “substantial history” of violent offenses
preceding the charge as the preeminent factor warranting the aggravated term. Indeed, it
was the only factor expressly relied upon by the court. Appellant argues that he did not
admit that he had a “ ‘substantial history’ ” and that there was “no documentation of
appellant’s ‘substantial history.’ ” We disagree that there was no documentation
2 The Cunningham court expressly disagreed with the California Supreme Court’s
decision in Black, supra, 35 Cal.4th 1238, stating that “[c]ontrary to the Black court’s
holding, our decisions from Apprendi to Booker point to the middle term specified in
California’s statutes, not the upper term, as the relevant statutory maximum. Because the
DSL authorizes the judge, not the jury, to find the facts permitting an upper term
sentence, the system cannot withstand measurement against our Sixth Amendment
precedent.” (Cunningham, supra, 2007 U.S. LEXIS 1342 at p. 44.)

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supporting the court’s finding. The probation report prepared before appellant’s 2003
sentencing hearing, which was part of the record in this action revoking probation,
detailed appellant’s previous convictions, including: two prior convictions for assault
with a deadly weapon or by means of force likely to produce great bodily injury (Pen.
Code, § 245, subd. (a)(1)), as well as convictions for battery (Pen. Code, §§ 242, 243,
subd. (a)), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), petty
theft (Pen. Code, § 488), disorderly conduct (Pen. Code, § 647, subd. (f)), and fighting in
public (Pen. Code, § 415, subd. (1)). The 2006 probation violation report prepared in
connection with the instant probation revocation petition also relates: “The defendant has
had three reported incidents of violence against the victim while on this grant of
Probation and is on misdemeanor Probation in Contra Costa County for domestic
violence against the same victim.” At no time during the sentencing hearing did
appellant or counsel indicate there were any inaccuracies in these reports, which in any
event, were objectively verifiable.
The requirement that a fact that increases a sentence beyond the statutory
maximum must be found by a jury does not apply to the fact of a prior conviction.
(Almendarez-Torres v. United States (1998) 523 U.S. 224; Apprendi, supra, 530 U.S. at
pp. 488, 490; Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 2007 U.S. LEXIS
1324 at pp. 35-36.) This prior conviction exception to the Apprendi rule has been
construed broadly to apply not just to the fact of the prior conviction, but to other issues
relating to the defendant’s recidivism. (See, e.g., People v. Thomas (2001)
91 Cal.App.4th 212, 216-223.) However, the law in this area is not settled; extrinsic facts
relating to a recidivist aggravating circumstance may well implicate Apprendi.
In our view, the factor relied upon by the court to impose the upper term clearly
fell within the prior conviction exception to the Apprendi rule.3 Further, the prior
3 The same could be said for the defendant’s status as a probationer, a fact that can
also be established by a review of the court record relating to the prior offense. However,
the trial court did not specifically rely on this factor in imposing the upper term and
therefore we do not rely upon it.

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conviction aggravating factor did not in any way “ ‘relate to the commission of the
offense, but goes to the punishment only . . . .’ ” (Almendarez-Torrez v. United States,
supra, 523 U.S. at p. 244, italics omitted.) Therefore, this factor did not need to be
supported by jury findings.
Accordingly, we conclude that imposition of the aggravated term in this case did
not violate appellant’s federal constitutional right to a jury trial under the Sixth
Amendment or his right to due process under the Fourteenth Amendment as explicated in
Blakely, supra, 542 U.S. 296 and Cunningham, supra, 2007 U.S. LEXIS 1324.
DISPOSITION
The judgment is affirmed.
_________________________
Kline, P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.

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