P. v. Rodriguez

Filed 5/21/07 P. v. Rodriguez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA THOMAS RODRIGUEZ,
Defendant and Appellant.
F049092
(Super. Ct. No. F05903671-6)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri
and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Vartabedian, Acting P.J., Harris, J. and Levy, J.

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2.
A jury found defendant Joshua Thomas Rodriguez guilty of two counts of corporal
injury to a cohabitant with a prior conviction of the same. (Pen. Code,1 § 273.5, subd.
(e).) The court sentenced defendant to concurrent upper terms for these offenses.
Defendant appealed, claiming the court violated his Sixth and Fourteenth Amendment
rights under the United States Constitution by imposing the upper term without a jury
determination of the aggravating circumstances. We affirmed the judgment in an
unpublished opinion. On February 20, 2007, the Supreme Court of the United States
granted defendant’s petition for writ of certiorari. The court vacated the judgment in this
case and remanded the matter to us for further consideration in light of Cunningham v.
California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
We have further considered the matter. We again affirm the judgment.
Facts
On June 13, 2005, defendant was charged by information with two counts of
corporal injury to a cohabitant with a prior (§ 273.5, subd. (e)), resulting from two
incidents on May 9, 2005. Defendant waived his right to a jury trial on the prior
misdemeanor conviction under section 273.5, subdivision (a), and admitted the truth of
the prior allegation.
On August 18, 2005, a jury found defendant guilty of both counts. At his
sentencing hearing on September 15, 2005, the court sentenced defendant to the upper
term of five years in state prison for each count, with the two terms to run concurrently.2
In imposing the sentence, the trial court expressly relied upon the probation officer’s
report, a series of letters received by the court, defendant’s statement, and a review of
defendant’s prior conviction and probation records. It found no mitigating factors, but
found multiple aggravating factors, including that defendant’s prior record of criminal
1 All further references are to the Penal Code unless otherwise stated.
2 Less credit for 195 days served.

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3.
conduct shows increasing recency and frequency and indicates a pattern of increasingly
serious conduct. The court also sentenced defendant to a concurrent middle term of three
years on a previous conviction for stalking. (§ 646.9, subd. (b); Fresno Co. Super. Ct.
case No. F03902176-7.) Defendant filed a timely notice of appeal on October 24, 2005.
Discussion
Defendant contends the trial court violated his constitutional rights by using
aggravating factors not admitted or found true by a jury to impose the upper term under
California’s Determinate Sentencing Act. (Blakely v. Washington (2004) 542 U.S. 296.)
Under the determinate sentencing law as applicable in this case, “[w]hen a judgment of
imprisonment is to be imposed and the statute specifies three possible terms, the court
shall order imposition of the middle term, unless there are circumstances in aggravation
or mitigation of the crime.” (Former § 1170, subd. (b), as amended by Stats. 1998, ch.
926, § 1.) To determine if circumstances justify the imposition of the upper or lower
term, the court may consider “the record in the case, the probation officer's report . . . and
statements in aggravation or mitigation submitted by the prosecution, the defendant, or
the victim … and any further evidence introduced at the sentencing hearing.” (Ibid.)
In Cunningham, supra, the United States Supreme Court held that a trial court’s
imposition of the upper term sentence under the determinate sentencing law violates a
defendant’s constitutional right to jury trial if the court’s determination is made in
reliance on aggravating factors not found true by a jury or admitted by the defendant.
(549 U.S. at p. ___ [127 S.Ct. at p. 860].) The Cunningham court, however, reaffirmed
an exception to the jury verdict/admission rule when the trial court uses the fact of prior
convictions to impose the upper term. (Id. at p. 868.)
In the present case, the court relied on defendant’s record of prior convictions,
along with a multitude of other factors that, standing alone, would appear to violate
Cunningham. These errant factors did not stand alone, however, and when taken in
conjunction with the valid prior-convictions factor, may not be subject to the

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4.
Cunningham rule at all. (See People v. Black (2005) 35 Cal.4th 1238, 1270 (conc. & dis.
opn. of Kennard, J.).)
In any event, the court found no factors in mitigation. It has long been established
that, in the absence of mitigating factors, the presence of a single, valid aggravating
factor is sufficient for imposition of the upper term. (See People v. Castellano (1983)
140 Cal.App.3d 608, 615.) “When a trial court has given both proper and improper
reasons for a sentence choice, a reviewing court will set aside the sentence only if it is
reasonably probable that the trial court would have chosen a lesser sentence had it known
that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492.)
We can see no basis to distinguish between aggravating factors not found true by a
jury and, for example, not supported by the record. Accordingly, in our view, the
standard of review specified in People v. Price, supra, 1 Cal.4th at page 492 (see People
v. Watson (1956) 46 Cal.2d 818, 836) is applicable in the present circumstances. Based
on a review of the transcript of the sentencing hearing, the report of the probation officer,
and the other documents before the trial court, it is not reasonably probable that the court
would have chosen a lesser sentence had it known its determination of aggravating
factors was limited to defendant’s prior record. Even if the appropriate standard was that
established in Chapman v. California (1967) 386 U.S. 18, the result would not change: it
is clear beyond a reasonable doubt the trial court would have imposed the upper term on
the basis of defendant’s prior convictions alone, in the absence of any mitigating factors.
Disposition
We affirm the judgment.

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