P. v. Jones

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Filed 3/29/07 P. v. Jones CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
EDGAR BRUNO JONES,
Defendant and Appellant.
A114027
(San Francisco County
Super. Ct. No. 197669)
Defendant Edgar Jones appeals from a judgment sentencing him to the upper term
of five years in state prison after a jury found him guilty of second degree robbery. (Pen.
Code, § 212.5, subd. (c).1) His sole contention is the trial court committed Blakely error
(Blakely v. Washington (2004) 542 U.S. 296 (Blakely)) in imposing the upper term. We
agree, but finding the error to have been harmless, affirm the judgment.
BACKGROUND
Defendant was arrested after he forcibly removed $30 from the pocket of his
victim, Kevin Healy. Defendant had approached Healy, who was disheveled and
appeared to be intoxicated, asking him for a cigarette. After Healy gave him a cigarette,
defendant grabbed Healy and pushed him back over a police barricade, effectively
rendering him helpless. Defendant took the money from Healy’s pocket and started to
walk away. Healy called out to defendant to give him back his money. Defendant turned
around, raised his fists towards Healy and said, “Fuck you.” Unfortunately for defendant,
Healy was a police decoy.
1 All statutory references are to the Penal Code.

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Defendant was charged under the name of Calvin Bradley with a single count of
second degree robbery (§ 212.5, subd. (c).) It also was alleged, for purposes of
enhancement, that defendant had suffered three prior prison terms (§ 667.5, subd. (b).)
Trial was bifurcated so that the jury considered the issue of defendant’s guilt before
receiving evidence of the prior convictions. At the completion of the first phase of the
trial, the jury found defendant guilty of the robbery charge. During the second phase of
the trial, defendant’s fingerprints were compared with those on Calvin Bradley’s court
records, and it was discovered that defendant was not Calvin Bradley. The court
therefore directed a verdict that the allegations of prior convictions could not be proven.
S ENTENCING
The trial court found no mitigating circumstances relating either to the crime or to
defendant himself. It found no aggravating circumstances relating to the crime, but found
several aggravating circumstances relating to defendant. Specifically, the court found
defendant has engaged in violent conduct indicating a serious danger to society, his prior
convictions have been numerous and of increasing seriousness, defendant has served
prior prison terms and his prior performance both on probation and parole has not been
satisfactory. (Cal. Rules of Court, rule 4.421(b).) The court imposed the aggravated term
after finding the aggravating circumstances outweighed the mitigating circumstances.
Defendant contends his federal constitutional rights to a jury trial and due process
were violated because the court failed to submit the question of the existence of
aggravating factors to a jury. Defendant cites Blakely, supra, 542 U.S. 296, where the
United States Supreme Court, applying a rule it had established in Apprendi v. New
Jersey (2000) 530 U.S. 466, 490 (Apprendi), held, “[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.” (Blakely,
supra, at p. 301.) In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856],
decided after the briefing in this case, the United States Supreme Court, overruling
People v. Black (2005) 35 Cal.4th 1238, found California’s Determinate Sentencing Law
(DSL) violates the principles underlying Apprendi in that it allows a judge to impose an

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upper term sentence based on the judge’s finding by a preponderance of the evidence that
circumstances in aggravation outweigh circumstances in mitigation. (Cunningham,
supra, 127 S.Ct. at p. 868.) “[O]ur 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.” (Id. at p. 871.)
That the trial court here imposed the upper term sentence based on its own
findings of aggravating circumstances does not end the matter. A defendant does not
have a federal constitutional right to a jury trial, for sentencing purposes, on whether the
defendant has suffered a prior conviction. (People v. McGee (2006) 38 Cal.4th 682,
699.) It follows that the trial court is entitled to determine that fact for itself. (See
Apprendi, supra, 530 U.S. at pp. 487-488, recognizing the “Almendarez-Torres
exception,” named after Almendarez-Torres v. United States (1998) 523 U.S. 224.) The
court’s authority is not confined to a determination of the simple fact of a prior
conviction. It is entitled to consider a defendant’s “recidivism,” and therefore may
determine such things as whether the defendant had suffered a prior conviction, whether
the defendant was the person who suffered a prior prison term, or whether the elements of
a prior crime qualifies the crime as a “serious prior felony conviction” for purposes of
sentence enhancement under the Three Strikes Law. (People v. McGee, supra, at
pp. 701, 706, 709.)
Here, all, or most, of the circumstances listed by the court pertained to defendant’s
recidivism and, therefore, are circumstances that were not required to be submitted to a
jury under Apprendi, supra, 530 U.S. 466. While certain circumstances, such as that
defendant had engaged in violent conduct, at least arguably should have been submitted
to a jury, the majority of the circumstances on which the court relied were circumstances
it was entitled to determine. As there are no mitigating circumstances, there is no
likelihood the court would have imposed a different sentence had it followed Blakely,
supra, 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856. The error, if any, was

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harmless beyond a reasonable doubt. (See Washington v. Recuenco (2006) ___ U.S. ___
[126 S.Ct. 2546]; Chapman v. California (1967) 386 U.S. 18 , 24; People v.
Sengpadychith (2001) 26 Cal.4th 316, 327.)
DISPOSITION
The judgment is affirmed.
_________________________
STEIN, J.
We concur:
_________________________
MARCHIANO, P. J.
_________________________
MARGULIES, J.

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