P. v Curtis

Filed 12/19/07 P. v. Curtis CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
PULLEY GENE CURTIS,
Defendant and Appellant.
B192414
(Los Angeles County
Super. Ct. No. SA058830)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Amy D. Hogue, Judge. Affirmed.
Judith Vitek, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette,
Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant
Attorney General, Linda C. Johnson, Lawrence M. Daniel and Joseph P. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
________________

-- 1 of 5 --

2
Pulley Gene Curtis appeals from a judgment entered after a jury convicted him
of one count of unlawful driving or taking of a vehicle, in violation of Vehicle Code
section 10851, subdivision (a). The trial court sentenced defendant to the upper term
of three years in state prison. Defendant urges that his Sixth Amendment right to a
jury trial was violated when the trial court imposed the upper term without jury
findings to support it. We affirm.1
FACTS
Viewing the whole record in the light most favorable to the judgment below as
we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139), the evidence established
the following. Sylvia Stern’s car was stolen on December 14, 2005. Two weeks later,
defendant called Ms. Stern, telling her that he worked for a car cleaning service and
that a man had hired him to clean her car. However, the man never returned to pick up
the car. Defendant said he found Ms. Stern’s identification and phone number in the
car and called her. Defendant told Ms. Stern that if she paid him $5,500, he would
bring the car to her. Ms. Stern agreed to pay him, but instead called the police, who
arrested defendant as he drove Ms. Stern’s car to the parking structure of her
residence.
Defendant was convicted as noted above, and this appeal followed.
DISCUSSION
Defendant contends that, under the dictates of Cunningham v. California (2007)
549 U.S ___ [127 S.Ct. 856] (Cunningham), the imposition of the upper term violated
his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to proof
beyond a reasonable doubt of aggravating factors used to support that sentence.
Defendant’s contention lacks merit. For the reasons set forth in People v. Black (2007)
1 Defendant filed a petition for writ of habeas corpus on September 7, 2007. We
have filed a separate order in connection with the petition for writ of habeas corpus.

-- 2 of 5 --

3
41 Cal.4th 799 (Black), we find no constitutional violation in the trial court’s
imposition of the upper term.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme
Court held 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.” (Id. at p. 490.) The Supreme Court
subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” (Blakely v. Washington (2004) 542 U.S.
296, 303 (Blakely).) The high court recently made it clear that, “[i]n accord with
Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is
the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at
p. 868].) The court therefore concluded that the California determinate sentencing law
was unconstitutional to the extent it authorized the trial court to impose an upper term
sentence based on facts that were found by the court, rather than by a jury beyond a
reasonable doubt. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 871].)
However, “as long as a single aggravating circumstance that renders a
defendant eligible for the upper term sentence has been established in accordance with
the requirements of Apprendi and its progeny, any additional factfinding engaged in by
the trial court in selecting the appropriate sentence among the three available options
does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p.
812.)
As defendant acknowledges, the right to a jury trial does not apply to the fact of
a prior conviction. (Black, supra, 41 Cal.4th at p. 818; People v. Sandoval (2007) 41
Cal.4th 825, 836–837.) Moreover, the “‘prior conviction’ exception” must not be read
too narrowly; it includes “not only the fact that a prior conviction occurred, but also
other related issues that may be determined by examining the records of the prior
convictions.” (Black, supra, at p. 819.)

-- 3 of 5 --

4
The trial court’s determination that defendant served a prior prison term is the
type of finding relating to a defendant’s recidivism “that may be determined by
examining the records of the prior convictions” and is “‘typically and appropriately
undertaken by a court.’” (Black, supra, 41 Cal.4th at pp. 819–820; accord, People v.
Yim (2007) 152 Cal.App.4th 366, 370–371.) Once the trial court made this
determination, defendant was eligible for the upper term, which became the statutory
maximum. (Black, supra, at p. 816.) The trial court’s finding of additional facts that
supported its discretionary choice of the upper term—the particular vulnerability of the
victim; the professionalism of the crime; and that the crime involved an attempted
taking of the car which had a great monetary value and was very important to the
victim—thus did not violate defendant’s right to trial by jury. (Id. at p. 820.)
Defendant challenges the Black decision in several regards. We, of course, are
bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.) Defendant also urges that the trial court’s finding that defendant’s prior
performance on probation or parole was unsatisfactory is a subjective, factual finding,
that cannot be relied upon to impose an upper term. Defendant is incorrect. First, the
trial court made that finding in connection with its decision to deny probation, rather
than to impose the upper term. In any event, the same facts may be used both to
support the denial of probation and to impose the upper term. (Black, supra, 41
Cal.4th at p. 817.) The trial court therefore could also have relied for imposition of the
upper term upon its determinations that defendant did not perform well on probation
previously. This determination, like the finding that defendant was on probation at the
time of the current offense, did not require findings by a jury. (Id. at pp. 819–820;
People v. Yim, supra, 152 Cal.App.4th at p. 371.)

-- 4 of 5 --

5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________, J.
ASHMANN-GERST
We concur:
___________________, Acting P. J.
DOI TODD
___________________, J.
CHAVEZ

-- 5 of 5 --